T 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 


Shippers  and  Carriers 

OF 

Interstate  Freight 


EDGAR  WATKINS,  LL.  B. 

Of  the  Atlanta  (Ga.)  Bar 


CHICAGO 

t.  h.  flood  and  company 

Law  Book  Publishers 

1909 


Copyright,   1909 

by 

EDGAR   WATKINS 

T 
1909 


PREFACE. 


No  branch  of  the  hiw  is  more  important  than  that  discuss- 
ing the  relative  rights  and  duties  of  shippers  and  carriers  of  in- 
terstate freight,  and  no  branch  of  the  law  is  less  generally 
knoAMi  than  that  relating  to  those  rights  and  duties.  The  pur- 
pose of  this  book  is  to  help  those  who  may  be  called  upon  to  ad- 
vise as  to  such  rights  and  duties  to  an  understanding  of  this 
interesting  phase  of  the  law. 

In  approaching  the  subject  the  experience  of  an  active  prac- 
titioner was  drawn  upon  to  determine  what  would  be  most  use- 
ful, not  only  to  the  legal  profession,  but  to  traffic  men,  whether 
in  the  employ  of  the  carriers  or  of  those  bureaus  organized  all 
over  the  country  to  aid  and  advise  shippers. 

From  tliis  experience,  it  was  thought  that  where  the  state  of 
the  authorities  justified,  the  law  should  be  given  as  nearly  as 
might  be  in  the  language  of  the  courts  having  final  authority 
to  annomice  that  law.  For  this  reason,  in  those  questions  that 
have  been  definitely  determined,  liberal  quotations  have  been 
inserted. 

Many  questions,  however,  affecting  the  subject  of  this  book 
have  not  yet  been  determined.  "Where  this  is  true,  the  opinions 
of  the  Federal  courts,  and  of  the  Interstate  Commerce  Com- 
mission, and  in  some  instances  the  State  courts,  on  subjects 
analagous  to  that  imder  discussion,  have  been  referred  to  and 
discussed.  In  tliis  way  it  has  been  sought  to  deduce  the  prin- 
ciples of  law. 

The  Act  to  Regulate  Commerce  has  been  annotated  not  only 
with  the  decisions  of  the  courts  but  also  with  the  opinions  of  the 
Interstate  Commerce  Commission.  This  will  enable  any  one  de- 
siring to  investigate  a  particular  provision  of  that  act  to  trace 
the  construction  thereof  by  the  references  that  have  been  made 
thereto  by  the  tribunals  whose  duty  it  is  to  enforce  this  great 
statute. 

The  Sherman  Anti-Trust  Law,  the  Twenty-Eight  Hour  Law, 
and  other  statutes  affecting  the  question  are  cited  and  discussed 

5 

7558 '^P 


6  Preface. 

in  so  far  as  they  may  relate  to  the  subject  under  investigation. 
Statutes  such  as  the  Safety  Appliance  Act,  the  Employer's  Lia- 
bility Act,  the  Arbitration  Act,  the  Hours  of  Service  Act,  the 
Corporation  Tax  Provision,  and  other  acts,  a  knowledge  of  which 
may  be  necessary  to  those  who,  as  practitioners  or  others  having 
to  do  with  the  enforcement  of  those  laws,  are  required  to  advise 
or  act  with  reference  thereto,  are  inserted. 

"While  few  lawyers  have  given  special  attention  to  the  ques- 
tions herein  discussed,  the  widening  scope  of  interstate  com- 
merce, makes  it  necessary  that  all  practitioners  shall  be  ready  to 
advise  clients  as  to  the  rights  and  liabilities  growing  out  of  the 
law  relating  to  transportation  of  this  commerce. 

Claims  for  overcharge,  for  loss  and  damage  on  shipments 
moving  from  one  state  to  another  arise  in  the  business  of  most 
manufacturers,  jobbers,  and  merchants.  The  law  fixing  the 
rights  growing  out  of  such  shipments  is  found  in  the  statutes 
and  decisions  of  the  Federal  Government.  To  make  more  read- 
ily available  and  understandable  the  laws  is  the  purpose  of  this 
work.  With  what  success  that  purpose  has  been  effected  must 
be  determined  by  those  who  may  make  use  of  what  is  herein 
set  down. 

The  author  will  be  well  pleased  if  the  result  of  his  labors 
should  be  to  make  clearer  and  more  widely  Imown  this  inter- 
esting and  difficult  branch  of  our  law. 

EDGAR  WATKINS. 

Atlanta,  Georgia,  October,  1909. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

VALIDITY  AND   SCOPE   OF  THE  ACT   TO  EEGULATE   COMMERCE 

§  1.  Common  law  obligations  of  common  carriers. 

2.  Power  of  Congress  over  interstate  commerce. 

3.  Constitutionality  of  the  act  to  regulate  commerce. 

4.  Eeasons  for  the  act  to  regulate  commerce. 

5.  Carriers  included  in  the  act. 

6.  Carriers  duties  under  the  act. 

7.  What  transjiortation  included  in  the  act. 

8.  Powers  and  procedure  of  the  commission. 

9.  Court  procedure  with  reference  to  the  orders  of  the  commission. 

CHAPTER  II. 

ALL    SERVICES    RENDERED    BY    COMMON    CARRIERS    IN    THE 
TRANSPORTATION  OF  PERSONS  OR  PROPERTY  OR  IN  CON- 
NECTION THEREWITH  MUST  BE  JUST  AND  REASONABLE. 

§  50.  All  charges  must  be  reasonable. 

51.  Cost  of  carriers'  equipment. 

52.  Cost  of  service. 

53.  Value  of  service. 

54.  Value  of  the  commodity,  its  general  utility  and  danger  of  loss. 

55.  Competition   or   its   absence   considered   in   determining  reasonable- 

ness of  rate. 

56.  Rates  affected  by  amount  of  tonnage. 

57.  Distance  and  rate  per  ton  mile. 

58.  General  business  conditions. 

59.  Rates  long  in  existence  are  presumed  to  be  reasonable. 

60.  Grouping  territory  and  giving  each   group   same  rate  legal  under 

some  circumstances. 

61.  Basing  point  system. 

62.  Comi)arisons   between    different   lines    as   a    means   of   determining 

correct  rates. 

63.  Car  load  and  less  than  car  load  movements  as  affecting  the  rate. 

64.  Relation  of  through  rates  to  the  total  of  the  local  rates. 

65.  The  public  interest  must  be  considered  in  making  rates. 

66.  Through  routes  and  joint  rates. 

67.  General  princii)les  applicable  to  the  question,  what  is  a  reasonable 

rate? 

7 


8  Table  of  Contents. 

CHAPTER  III. 

EQUALITY   IN   RATES. 

§  7.1.  Common  law  as  to  equality  in  rates  by  common  carriers. 

7(».  Comparison  of  the  English  railway  and  canal  act  with  the  act  to 
regulate  commerce. 

77.  Discrimination   forbidden. 

78.  Discrimination  against  individuals. 

79.  Undue  preference  in  favor  of  persons,  localities  or  traffic. 

80.  Facilities  for  interchange  of  traffice  and  rates  and  charges  to  con- 

necting lines  must  be  without  undue  or  unreasonable  preference. 

81.  Discrimination  by  charging  more  for  a  shorter  than  a  longer  haul. 

82.  Discrimination  between  car  loads  and  less  than  car  loads. 

83.  Classification  of  commodities  should  be  without  discrimination. 

84.  Milling  in  transit. 

85.  Ecbilling  illegal  and  discriminatory. 

86.  Discrimination   by  making   payments   to   elevators   and   others   ele- 

vating and  sacking  grain. 

87.  Cars  must  be  furnished  without  discrimination. 

88.  Right  of  carrier  to  route  shipments  beyond  its  own  terminus. 

89.  Discrimination  in  billing. 

90.  Tariffs  of  rates  must  be  printed,  posted  and  maintained. 

91.  Different  rates  over  the  same  line  in  opposite  directions. 

92.  Discrimination  by  granting  free  service. 

93.  Commodities  clause — Illegal  for  carriers  to  transport  commodities 

produced  or  owned  by  them  or  in  which  they  are  interested. 

94.  Basing  points  and  group  rates. 

95.  Rebates. 

CHAPTER  IV. 

ENFORCEMENT   BY   THE   COMMISSION  OF  THE   ACT   TO   REGU- 
LATE  COMMERCE. 

§  1.50.     General  statement  of  the  functions  of  the  commission. 
1.51.     Appointment  and  general  duties  of  the  commission. 

152.  Power  of  the  commission  to  relieve  from  the  long  and  short  haul 

clause. 

153.  The  commission's  duty  with  reference  to  schedules  of  rates. 

154.  Reparation. 

155.  Reparation  to  whom  paid. 

156.  Reparation  by  whom  paid. 

157.  Reparation  protest  unnecessary. 

158.  Reparation  an  inadequate  remedy. 

1.59.  Reparation,  limitation  on  complaint  for. 

160.  Commission  may  make  investigations  without  complaint. 

161.  Commission  may  ask  for  the  aid  of  courts  to  enforce  law. 

162.  Rehearings  by  the  commission. 


Table  of  Contents.  9 

163.  Commission  has  power  to  prescribe  rates  for  the  future. 

164.  Commission   has   power   to   make   regulations   which   carriers   must 

obey. 

165.  Commission  may  establish  through  routes  and  joint  rates  and  pre- 

scribe the  division  of  the  joint  rate. 

166.  Procedure  before  the  commission. 

167.  Rules  of  procedure  prescribed  by  the  commission. 

168.  Forms  prescribed  by  the  commission. 

CHAPTER  V. 

ENFORCEMENT   BY   THE    COURTS    OF   THE    ACT    TO   REGULATE 

COMMERCE,   INCLUDING   A   DISCUSSION    OF   THE    EFFECT 

GIVEN   BY   THE    COURTS    TO    THE    ORDERS   AND 

FINDINGS  OF  THE  COMMISSION. 

§  200.     Jurisdiction   of  the  courts   of  the  states  to   enforce  provisions   of 
the   act   to   regulate  commerce. 

201.  The  enforcement  of  the  provision  making  initial  carrier  liable  for 

loss  and  damage. 

202.  Jurisdiction  of  the  courts  of  the  United  States  to  compel  the  at- 

tendance of  witnesses  before  the  commission  and  enforce  obedi- 
ence to  the  act. 

203.  Jurisdiction  of  the  courts  to  enforce  orders  of  the  commission. 

204.  The  effect  to  be  given  by  courts  to  orders  of  the  commission  re- 

quiring carriers  to  desist  from  some  particular  practice. 

205.  Orders  of  reparation.     Effect  given  by  the  courts. 

206.  The    force    of   the    commission's    orders    fixing    rates.      Rules    and 

practices  to  be  observed  in  the  future. 

CHAPTER  VI. 

POWER  OF  THE  COURTS  OF  THE  UNITED  STATES  TO  PREVENT 
AN  ILLEGAL  ADVANCE  IN  RATES. 

§  250.     Basic  principles  supporting  the  right  to  enjoin  the  exaction  of  an 
illegal  rate. 

251.  Injunction  against  an  illegal  rate  prior  to  the  act  to  regulate  com- 

merce. 

252.  Injunctions  against  an  illegal  rate  since  the  jiassage  of  the  act  to 

regulate  commerce  and  prior  to  the  Abilene  Case. 

253.  Such  injunctions  by  circuit  courts  since  the  Abilene  Case. 

254.  The  question  in  the  circuit  courts  of  appeal. 

255.  Constitutional  and  statutory  provisions  affecting  the  question. 

270.  Conclusion. 

271.  Venue   of   suits   to   enjoin   carriers   from    making   an   unreasonable 

advance. 


10  Table  op  Contents. 

CHAPTER  VII. 

STATE  LAWS   OR   EEGULATIONS   AFFECTING  INTERSTATE 
TRANSPORTATION. 

§  300.  Scope  of  chapter. 

301.  Regulation  of  movement  of  trains.     Sunday  law. 

302.  Same  subject.     Speed  of  trains. 

303.  Same   subject.      Requirement   that   trains   shall   stop   at   particulaj 

stations. 

304.  Same  subject.     Connections  witli   other   carriers   and   with   private 

switch  tracks. 
30.5.     Demurrage  charges, 

306.  Furnishing  cars. 

307.  Separate  coach  laws. 

308.  Long  and  short  haul  clause  in  state  law. 

309.  State    laws    forbidding    the    consolidation    of    competing    common 

carriers. 

310.  Quarantine  laws  of  states. 

311.  Laws  to  promote  the  security  and  comfort  of  passengers. 

312.  State  regulation  of  carriers  and  their  employees. 

313.  Laws  limiting  or  enlarging  the  common  law  liability  of  carriers. 

314.  Penalties  for  failure  to  pay  claims. 

CHAPTER  VIII. 

ACTS  OF  CONGRESS  INDIRECTLY  AFFECTING  INTERSTATE 
TRANSPORTATION. 

§  400.  Scope  of  chapter. 

401.  The  twentyeight  hour  law. 

402.  Sherman  antitrust  law. 

403.  Safety  appliance  acts. 

404.  Employers'  liability  act. 

405.  Enforcement  by  state  courts  of  rights  under  the  safety  appliance 

and  employers'  liability  acts. 

406.  Arbitration  act. 

407.  Corporation   tax  law. 

CHAPTER  IX. 

ACTS  REGULATING  COMMERCE. 

Including  act  approved  February  4,  1887,  chapter  104,  effective  April 
5,  1887,  24  Stat.  L.  379,  U.  S.  Comp.  Stat.  1901,  P.  3154,  3  Fed.  Stat. 
Ann.  809,  et.  seq.     Known  as  the  Cullom  Act. 

Amendment  of  March  2,  1889,  25  Stat.  L.  855,  Chap.  382,  U.  S.  Comp. 
Stat.  1901,  p.  3158,  3  Fed.'  Stat.  Ann.  852,  et.  seq. 


Table  of  Contents.  11 

Amendment  of  February  10,  1891,  Chapter  128,  26  Stat.  L.  743,  U.  S. 
Comp.  Stat.  1901,  p.  3163,  3  Ted.  Stat.  Ann.  839. 

Amendment  of  February  8,  1895,  Chap.  61,  28  Stat.  L.  643,  U.  S. 
Comp.  Stat.  1901,  p.  3171,  3  Fed.  Stat.  Ann.  851. 

Act  February  11,  1893,  27  Stat.  L.  443,  Chap.  83,  U.  S.  Comp.  Stat. 
1901,  p.  3173,  3  Fed.  Stat.  Ann.  855.     Known  as  the  Testimony  Act. 

Act  February  11,  1903,  Chapter  544,  32  Stat.  L.  823,  U.  S.  Comp.  Stat. 
Supp.  1907,  10  Fed.  Stat.  Ann.  199.     Known  as  the  Expediting  Act. 

Act  February  19,  1903,  Chap.  708,  32  Stat.  L.  847,  U.  S.  Comp.  Stat. 
Supp.  1907,  p.  880,  10  Fed.  Stat.  Ann.  170.     Known  as  the  Elkins  Act. 

Act  February  25,  1903,  Chap.  755,  32  Stat.  L.  903,  10  Fed.  Stat.  Ann. 
173,  being  section  one  of  the  Appropriation  Act. 

Act  January  29,  1906,  34  Stat.  L.  584,  Chap.  3591,  U.  S.  Comp.  Stat. 
Supp.  1907,  p.  892,  Fed.  Stat.  Ann.  Supp.  1907,  p.  167.  Known  as  the 
Hepburn  Act. 

Act  June  30,  1906,  Chap.  3920,  34  Stat.  L.  798,  U.  S.  Comp.  Stat.  Supp. 
1907,  p.  900,  Fed.  Stat.  Ann.  Supp.  1907,  p.  382. 

Act  April  13,  1908,  35  Stat.  L.  60,  Chap.  143. 
§  500.     Scope  of  act  to  regulate  commerce. 

501.  Not  applicable  to  intrastate  transportation. 

502.  Terms  ' '  common  carrier, "  "  railroad, ' '  and  ' '  transportation ' '  de- 

fined. 

503.  Duty  of  carrier  to  furnish  transportation  and  to  establish  through 

routes. 

504.  All  transportation  charges  must  be  reasonable. 

505.  Free  service,  with  certain  exceptions,  prohibited  and  penalties  pre- 

scribed. 

506.  Eailroad   companies   prohibited   from    transporting   commodities   in 

which  they  are  interested,  with  certain  exceptions. 

507.  Terms  under  which  switch  connections  shall  be  made. 

508.  Definition  and  prohibition  of  unjust   discrimination. 

509.  Undue  and  unreasonable  preference  jirohibited. 

510.  Carriers    shall    accord    reasonable    and    equal    facilities    for    inter- 

change of  traffic. 

511.  Rule  as  to  long  and  short  hauls. 

512.  Pooling  of  freights  and  division  of  earnings  prohibited. 

513.  Carriers  shall  file,  print  and  keep  public  schedules  of  rates. 

514.  Eegulations    as    to    printing    and    i^osting    schedules    of    rates    for 

freight  moving  through  foreign  countries  from  and  to  any  place 
in  the  United  States. 

515.  No  change  of  schedules  of  rates  shall  be  made  without  notice. 

516.  Names  of  all  carriers  parties  to  schedules  must  be  specified. 

517.  Carriers  shall  file  contracts  relating  to  traffic  arrangements. 

518.  Commission  may  prescribe  form  of  schedules. 

519.  No    carrier    shall    participate    in    interstate    commerce    unless    tht 

charges  therefor  are  published,  and  no  such  carrier  shall  deviate 
from  the  published  schedules. 

520.  Preference  and  precedence  may  be  given  military  traffic  in  time  of 

war. 


12  Table  op  Contents. 

521.  Corporations  violating  the  act  to  regulate  commerce  guilty  as  indi- 

viduals and  punishment  prescribed. 

522.  Rebate.      Punishment    for    oflfering,    granting,    soliciting    or    ac- 

cepting. 

523.  Act  of  officer  or  agent,  wlion  binding. 

524.  Carrier  filing  or  participating  in  rate  bound  thereby. 

525.  Forfeiture   for   rebating   in   addition   to   penalties.      Limitation    of 

six  years  fixed. 

526.  Contracts    and    combinations    to    prevent    continuous    carriage    of 

freight  prohibited. 

527.  Damages  and  attorneys'  fees  allowed  for  violations. 

528.  Where  to   sue  for  damages.     Compulsory  attendance  of   witnesses 

and  production  of  papers. 

529.  Penalties  for  violations  of  the  act. 

530.  Penalties  for  false  billing,  false  classification,  false  weighing,  etc., 

by  carriers. 

531.  Penalties  against  shippers  for  false  billing,  etc 

532.  Penalties  and  damages  for  inducing  discriminations. 

533.  Appointment  and  term  of  office  of  commissioners. 

534.  Power  and  duty  of  commissioners. 

535.  Power   of  courts  to  punish   for   disobedience,  witness   not   excused 

because  testimony  may  incriminate. 

536.  Right   to   take   testimony   by   deposition    and   the    manner    thereof 

prescribed. 

537.  Persons  who  may  file  complaints  before  the  commission  and  prac- 

tice with  reference  thereto. 

538.  Reports  of  commission  on  investigations,  how  made  and  published. 

539.  Power  of  commission  to  determine  and  prescribe  just  and  reason- 

able rates,  regulations  and  practices. 

540.  When  orders  take  effect  and  how  long  continue  unless  modified  or 

set  aside  by  the  commission  or  a  court. 

541.  Division  of  joint  rate  may  be  prescribed  by  commission. 

542.  Through   routes   and   joint   rates   may   be   established   by    commis- 

sion. 

543.  Charges   for   instrumentalities   furnished   by   shipper   must   be   rea- 

sonable. 

544.  Enumeration  of  powers  of  commission  not  exclusive. 

545.  Award  of  damages  shall  be  made  by  commission  after  hearing. 

546.  Carrier  failing  to  comply  with  order  for  reparation,   suit  may  be 

brought  thereon  in  United  States  circuit  courts,  the  order  being 
prima  facie  evidence  of  right  to  recover. 

547.  Limitation  on  action  for  damages. 

548.  All  parties  jointly  awarded  damages  may  sue  as  plaintiffs  against 

all  carriers  parties  to  the  award. 

549.  Service  of  orders  of  commission. 

550.  Commission  may  suspend  or  modify  its  orders. 

551.  Punishment   for  knowingly   disobeying   an  order  issued   under   sec- 

tion fifteen. 


Table  of  Contents.  13 

552.  District   attorney   and   attorney-general  to  prosecute.     Special  at- 

torneys may  be  employed. 

553.  Courts  may  enforce  obedience  to  commission's  orders,  mandatory 

or  otherwise. 

554.  Appeals  to  supreme  court,  priority  of  hearing. 

555.  Venue  of  suits  to  enjoin,  set  aside,  annul,  or  suspend  an  order  of 

the  commission. 

556.  Expediting  act  applicable  to  such  suits  as  well  as  suits  to  enforce 

orders  of  commission. 

557.  Limitation  on  right  to  grant  injunction  against  commission's  order. 

Provisions  for  appeal  from  interlocutory  order, 

558.  Schedules,  contracts,  etc.,  must  be  filed  with  the  commission,  and, 

when  filed,  original  or  certified  copy  prima  facie  evidence. 

559.  Eehearings  may  be  granted  by  the  commission. 
560      Procedure  before  the  commission. 

561.  Salaries  and  expenses  of  the  commission. 

562.  Principal  office  of  commission  in  Washington,  but  may  prosecute 

inquiries  elsewhere. 

563.  Annual  reports  required  and  what  they  shall  contain.     Penalties 

for  failure  to  make. 

564.  Commission  may  prescribe  form   of  keeping  accounts  and  inspect 

same. 

565.  Penalties    for    failure    to    keep    accounts    and    for    falsifying    the 

record. 

566.  Penalty  for  an  examiner  divulging  information  received  as  such. 

567.  United   States  circuit   and   district   courts  may,   upon  application, 

of  Attorney  General  at  request  of  commission,  enforce  provisions 
of  act. 

568.  Commission  may  employ  agents  or  examiners. 

569.  Eeceiving  carrier  liable  for  loss,  remedy  cumulative. 

570.  Annual  reports  by  commission  to  Congress. 

571.  Circumstances  under  which  reduced  or  free  fares  and  rates  may  be 

given. 

572.  Existing  remedies  not  abridged  or  altered.     Pending  litigation  not 

affected. 

573.  Interchangeable  mileage  tickets,  how  issued. 

574.  Discrimination   may  be   prevented   by  vrrit   of   mandamus,   remedy 

cumulative. 

575.  Number,    terms,    qualifications,    salary    and    appointment    of    com- 

missioners. 

576.  Existing  laws  as  to  obtaining  testimony  applicable  to  act. 

577.  Kepealing  conflicting  laws  not  to  affect  pending  suits. 

578.  Time  of  taking  effect  of  act. 

579.  Parties  defendant  other  than  carriers  in  suit  to  enforce  provisions 

of  act. 

580.  Equitable  proceedings  may  be  instituted  by  the  commission  to  re- 

strain discrimination  or  departure  from  published  rates. 

581.  Immunity  and  compulsory  attendance  of  witnesses,  production  of 

books  and  papers, 


14  Table  of  Contents. 

582.  Expediting  act  applicable  to  suits  brought  uiulcr  direction  of  at- 

torney-general. 

583.  Eepealing   clause   not    affecting   pending   suits   or   accrued   rights. 

When  act  takes  effect. 

584.  Certain  cases  given  precedence  and  hearing  expedited.     Hearing 

before  three  judges. 

585.  Direct  appeal  to  Supreme  Court. 

586.  Compulsory  attendance  of  witnesses  and  production  of  papers  pro- 

vided for. 

587.  Amendment  to  act  making  compulsory  attendance  of  witnesses  and 

production  of  papers. 

CHAPTER  X. 

Act  to  prevent  cruelty  to  animals  while  in  interstate  transit,  known  as 
the  28-hour  law  act  June  29,  1906,  Chapter  3594,  34  Stat.  L.  607,  U.  S. 
Comp.  St.  Supp.  1907,  p.  918,  Fed.  Stat.  Ann.  Sup.  1907,  p.  25. 

Act  March  4,  1907,  Chapter  2907,  34  Stat.  L.  1260,  et.  seq.,  requiring 
inspection  of  meat. 
§  590.     Time  prescribed   for   feeding  and  unloading  animals  in  transit. 

591.  Feeding  shall  be  at  expense  of  owner,  lien  given  for  food. 

592.  Penalty. 

593.  Meat  inspection  act. 

CHAPTER  XI. 

TKUSTS  AND  OTHER  COMBINATIONS  IN  RESTRAINT  OF  TRADE. 

Act  July  2,  1890,  Chapter  647,  26  Stat.  L.  210,  U.  S.  Compiled  Stat. 
1901,  p.  3200,  7  Fed.  Stat.  Ann,  336. 

§  600.     Contracts,  combinations  and  conspiracies  in  restraint  of  interstate 
commerce  illegal. 

601.  Monopolies   and  conspiracies  and  combinations  to  monopolize   in- 

terstate trade  illegal. 

602.  Prohibition   applies   to   territories   and   between   states   and   terri- 

tories. 

603.  Courts  given  jurisdiction  to  enjoin  violation  of  act. 

604.  Practice  with  reference  to  parties  and  service  of  subpoena  thereon. 

605.  Property  owned  under  a  contract  violating  this  act  being  in  course 

of  interstate  transportation  may  be  seized  and  forfeited. 

606.  Measure  of  damages  in  favor  of  person  injured. 

607.  Person  includes  corporation  and  association. 

608.  Act  of  August  28,  1894,  so  far  as  it  relates  to  trusts  and  com- 

binations in  restraint  of  trade. 


APPENDICES. 


A. 

An  Act  to  promote  the  safety  of  employees  and  travelers  upon  railroads 
by  compelling  common  carriers  engaged  in  interstate  commerce  to 
equip  their  cars  with  automatic  couplers  and  continuous  brakes  and 
their  locomotives  with  driving-wheel  brakes,  and  for  other  purposes. 


An  Act  to  amend  an  act  entitled  "An  act  to  promote  the  safety  of  em- 
ployees and  travelers  upon  railroads  by  compelling  common  carriers 
engaged  in  interstate  commerce  to  equip  their  cars  with  automatic 
couplers  and  continuous  brakes,  and  their  locomotives  with  driving- 
wheel  brakes,  and  for  other  purposes, ' '  approved  March  second, 
eighteen  hundred  and  ninety-three,  and  amended  April  first,  e^ighteen 
hundred  and  ninety-six. 

C. 

An  act  requiring  common  carriers  engaged  in  interstate  commerce  to  make 
full  reports  of  all  accidents  to  the  Interstate  Commerce  Commission. 


An  Act  to  promote  the  safety  of  employees  and  travelers  upon  railroads 
by  limiting  the  hours  of  service  of  employees  thereon. 

E. 

An  act  to  promote  the  safety  of  employees  on  railroads. 

r. 

An  act  to  promote  the  safe  transportation  in  interstate  commerce  of  ex- 
plosives and  other  dangerous  articles,  and  to  provide  penalties  for  its 
violation. 

G. 

An  Act  relating  to  the  liability  of  common  carriers  by  railroad  to  their 
employees  in   certain  cases. 

H. 

An  Act  concerning  carriers  engaged  in  interstate  commerce  and  their  em- 
ployees. 

I. 
Porporation  Tax  Act. 

15 


TABLE  OF  CASES  CITED. 


(Eeferences  are  to  Sections.) 

A. 

Aberdeen  Group  Commercial  Asso.  v.  IMobile  &  0.  R.  Co.  (10  I. 

C.  C.  R.  289),  509,  511. 
Addyston  Pipe  &  Steel  Co.  v.  United  States  (175  U.  S.  211,  44 

L.  Ed.  136,  20  Slip.  Ct.  96,  1  Fed.  Anti-Trust  Dec.  1009), 

600,  603,  605. 
Alabama  &  Vicksburg  R.  Co.  v.  Railroad  Com.  of  IMiss.  (203  U. 

S.  496,  51  L.  Ed.  298,  27  Sup.  Ct.  163),  85. 
Alexander  v.  United  States   (201  U.  S.  117,  50  L.  Ed.  686,  26 

Sup.  Ct.  356,  2  Fed.  Anti-Trust  Dec.  945),  600. 
Allen  V.  Louisville,  N.  A.  &  C.  R.  Co.  (1  I.  C.  C.  R.  199,  1  I.  C. 

R.  621),  511. 
Allen  V.  Oregon  R.  &  Nav.  Co.  (98  Fed.  16),  504. 
Allender  v.  Chicago,  B.  &  Q.  R.  Co.  (16  I.  C.  C.  R.  103),  528. 
American  and  Other  Express  Companies  v.  United  States  (212 

U.  S.  522,  53  L.  Ed.        ,  29  Sup.  Ct.        ,),  5,  92,  500,  505, 

571. 
American  Asphalt  Asso.  v.  Uintah  Ry.  Co.  (13  I.  C.  C.  R.  196), 

504. 
American  Banana  Co.  v.  United  Fruit  Co.  (160  Fed.  184),  606. 
American  Banana  Co.  v.  United  Fruit  Co.  (166  Fed.  261,        C. 

C.  A.         ),  606. 
American  Banana  Co.  v.  United  Fruit  Co.  (213  U.  S.  347,  53  L. 

Ed.        ,  29  Sup.  Ct.        ),606. 
American  Biscuit  &  Utg.  Co.  v.  Klotz  (44  Fed.  721,  1  Fed.  Anti- 
Trust  Dec.  2),  600. 
American  Brake  Beam  Co.  v.  Pungs  (141  Fed.  923,  73  C.  C.  A. 

157,  2  Fed.  Anti-Trust  Dec.  826),  600. 
American  Fruit  Union  v.  Cincinnati,  N.  0.  &  T.  P.  Ry.  Co.  (12 

I.  C.  C.  R.  411),  504. 
American  Lumber  &  Mfg.  Co.  v.  Southern  Pac.  Co.   (14  I.  C. 

C.  R.  561),  528. 

17 


18  Table  of  Cases  Cited. 

(Eeferences  are  to  Sections.) 

American  National  Live  Stock  Asso.  v.  Texas  &  P.  Hy.  Co.  (12 

I.  C.  C.  R.  32),  503. 
American  Union  Coal  Co.  v.  Penn.  R.  Co.  (159  Fed.  278),  528, 

600. 
American  AYarehouscmen 's  Asso.  v.  Illinois  Cent.  R.  Co.   (7  I. 

C.  C.  R.  556),  508,  513. 
Anderson  v.  United  States  (171  U.  S.  604,  43  L.  Ed.  300,  19  Sup. 

Ct.  50,  1  Fed.  Anti-Trust  Dec.  967),  600.      . 
Anthony  Salt  Co.  v.  Missouri  Pae.  Ry.  Co.  (5  I.  C.  C.  R.  299, 

4  I.  C.  R.  33),  54,  504. 
Arkansas  Fuel  Co.  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (16  I.  C.  C. 

R.  95,  98),  528,  537,  538,  539,  545. 
Armour  Pkg.  Co.  v.  United  States  (209  U.  S.  56,  52  L.  Ed.  681, 

28  Sup.  Ct.  428),  55,  95,  513,  522,  580. 
Armour  Pkg.  Co.  v.  United  States  (153  Fed.  1,  82  C.  C.  A.  135, 

14  L.  R.  A.  (N.  S.)  400),  513,  522. 
Arthur  v.  Oakes  (63  Fed.  310,  1  Fed.  Anti-Trust  Dec.  310,  11 

C.  C.  A.  209,  25  L.  R.  A.  414),  600. 
Associated  Wholesale  Grocers  v.  Missouri  Pac.  R.  Co.   (1  I.  C. 

C.  R.  156,  1  I.  C.  R.  321),  508. 
Associated  "Wholesale  Grocers  v.  Mo.  Pac.  R.  Co.  (1  I.  C.  C.  R. 

156.  1  I.  C.  R.  393),  573. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Denver  &  N.  0.  R.  Co.  (110  U.  S. 

667,  28  L.  Ed.  291,  4  Sup.  Ct.  185),  80,  508,  510. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Goetz  (51  111.  App.  151),  89. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Holmes   (18  Okla.  92,  90  Pac. 

22),  90. 
Atkins  V.  Fiber  Disintegrating  Co.   (18  Wall.  85  U.  S.  272,  21 

L.  Ed.  841),  271. 
Atlanta  v.  Chattanooga  Foimdry  &  Pipe  Co.   (101  Fed.  900,  2 

Fed.  Anti-Trust  Dec.  11),  606. 
Atlanta  v.  Chattanooga  Foimdiy  &  Pipe  Co.   (127  Fed.  23,  61 

C.  C.  A.  387,  64  L.  R.  A.  721,  2  Fed.  Anti-Trust  Dec.  299), 

606. 
Atlantic  Coast  Line  R.  Co.  v.  Florida  (203  U.  S.  256,  51  L.  Ed. 

174,  27  Sup.  Ct.  108),  206. 
Atlantic  Coast  Line  R.  Co.  v.  Henderson  (131  Ga.  75,  61  S.  E. 

1111),  201. 
Atlantic  Coast  Line  R.  Co.  v.  Macon  Grocery  Co.  (166  Fed.  206, 

90  C.  C.  A.        ),  3,  254,  528,  572. 


Table  of  Cases  Cited.  19 

(Eeferences  are  to  Sections.) 

Atlantic  Coast  Line  R.  Co.  v.  North  Carolina  Corporation  Com- 
mission (206  U.  S.  1,  51  L.  Ed.  933,  27  Sup.  Ct.  585),  52, 
65,  206,  304. 

Atlantic  Coast  Line  E.  Co.  v.  Wharton  (207  U.  S.  328,  52  L.  Ed. 
230,  28  Sup.  Ct.  121),  303. 

Attorney-General  v.  Great  Northern  R.  Co.  (29  L.  J.  Ch.  (N.  S.) 
794),  93. 

Augusta  Southern  R.  Co.  v.  Wrightsville  &  T.  R.  Co.  (74  Fed. 
522),  61,  94,  500,  508,  510. 

B. 

Baer  Bros.  Mercantile  Co.  v.  Missouri  Pac.  Ry.  Co.  (13  I.  C.  C. 

R.  329),  157,  528,  537. 
Baker  v.  State  (54  Wis.  368,  12  N.  W.  12),  206. 
Ball,  The  Daniel  (10  Wall.  77,  U.  S.  557,  19  L.  Ed.  999),  500. 
Baltimore  &  0.  R.  Co.  v.  Hamburger  (155  Fed.  849),  513. 
Baltimore  &  0.  R.  Co.  v.  Int.  Com.  Com.  (       Fed.         ) ,  206. 
Banner  Milling  Co.  v.  New  York  C.  etc.  R.  Co.  (13  I.  C.  C.  R. 

31),  509. 
Banner  Milling  Co.  v.  New  York  C.  &  H.  R.  R.  Co.  (14  I.  C.  C. 

R.  398),  206,  559. 
Barden  &  S.  v.  Lehigh  V.  R.  Co.  (12  I.  C.  C.  R.  193),  507. 
Barnes  Co.  v.  Berry  (156  Fed.  72),  601. 
Bamham  etc.  Dry  Goods  Co.  v.  Chicago  R.  T.  Co.  (14  I.  C.  C. 

R.  299),  504. 
Bates  V.  Penn.  R.  Co.  (4  I.  C.  C.  R.  281,  3  T.  C.  R.  296),  559. 
Baxendale  v.  Eastern  Counties  R.  Co.  (4  C.  B.  N.  S.  63),  75. 
Baxendale  v.  L.  &  S.  W.  Ry.  (4  H.  &  C.  130,  35  L.  J.  Ex.  108,  L. 

R.  1  Ex.  137,  12  Jur.   (N.  S.)  274,  14  L.  T.  26,  14  W.  R. 

458),  82. 

Beekman  Lumber  Co.  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  (15  I. 

C.  C.  R.  274),  159. 
Behlmer  v.  Louisville  &  N.  R.  Co.  (71  Fed.  835),  500,  511. 
Behlmer  v.  Louisville  &  N.  R.  Co.  (83  Fed.  898,  28  C.  C.  A.  229, 

42  U.  S.  App.  581),  500,  511. 
Behlmer  v.  Memphis  &  C.  R.  Co.  (6  I.  C.  C.  R.  257,  4  I.  C.  R. 

520),  500,  511. 
Bell  Co.  V.  Baltimore  etc.  R.  Co.  (9  I.  C.  C.  R.  632),  508. 
Bemont  v.  National  Harrow  Co.  (186  U.  S.  70,  46  L.  Ed.  1058, 

22  Sup.  Ct.  747,  2  Fed.  Anti-Trust  Dec.  169),  600. 


20  Tahlp:  op  Cases  Cited. 

(References  are  to  Sections.) 

Benson,  Ex  parte  (18  S.  C.  38),  75. 

Best  V.  Seaboard  A.  L.  Ey.  Co.   (72  S.  C.  479,  52  S.  E.  223), 

314. 
Bigbee  &  Warrior  Rivers  Packet  Co.  v.  Mobile  &  0.  R.  Co.  (60 

Fed.  545),  508,  509. 
Bigelow  V.  Calumet  &  Ileela  ^Mining  Co.   (155  Fed.  869),  253, 

603. 
Bigelow  V.  Calumet  &  Hecla  Mining  Co.   (167  Fed.  704),  253, 

600,  603. 
Bigelow  V.  Calumet  &  Hecla  Mining  Co.   (167  Fed.  721,         C. 

C.  A.       ) ,  253,  600,  603. 
Birmingham  Packing  Co.  v.  Texas  &  P.  Ry.  Co.  (12  I.  C.  C.  R. 

29,  500),  503. 
Bishop  V.  American  Preservers'  Co.  (51  Fed.  272,  1  Fed.  Anti- 
Trust  Dec.  49),  606. 
Bishop  V.  American  Preservers'  Co.  (105  Fed.  845,  1  Fed.  Anti- 

Tnist  Dec.  51),  606. 
Black  Mt.  Coal  Land  Co.  v.  Southern  Ry.  Co.   (15  I.  C.  C.  R. 

(12  I.  C.  C.  R.  23),  508,  509. 
Blackwell  Milling  &  Elevator  Co.  v.  Missouri,  K.  &  T.  Ry.  Co. 

286),  509. 
Blindell  v.  Hagan   (54  Fed.  40,  1  Fed.  Anti-Trust  Dec.  106), 

603. 
Block  V.  Standard  Distilling  &  D.  Co.  (95  Fed.  978,  1  Fed.  Anti- 
Trust  Dec.  993),  606. 
Blount  Mfg.  Co.  V.  Yale  &  Towne  Mfg.  Co.  (166  Fed.  555),  600. 
Blume  V.  Wells,  Fargo  &  Co.  (15  I.  C.  C.  R.  53),  528,  545. 
Board  of  Bristol,  Tenn.,  v.  Virginia  &  S.  W.  Ry.  Co.  (15  I.  C. 

C.  R.  453),  55,  600. 
Board  of  Trade  of  Chattanooga  v.  East  Tenn.,  Va.  &  Ga.  Ry. 

Co.  (5  I.  C.  C.  R.  546,  2  I.  C.  R.  798,  3  I.  C.  R.  106,  4  I.  C. 

R.  213),  504,  511. 
Board  of  Trade  of  Chicago  v.  Chicago  &  A.  R.  Co.   (4  I.  C.  C. 

R.  158,  3  I.  C.  R.  233),  79,  509. 
Board  of  Trade  of  Chicago  v.  Christie  Grain  &  Stock  Co.   (121 

Fed.  608,  2  Fed.  Anti-Trust  Dec.  233),  600. 
Board  of  Trade  of  Hampton  v.  Nashville,  C.  &  St.  L.  R.  Co.  (8 

I.  C.  C.  R.  503),  61,  94,  504,  509,  511. 
Board  of  Trade  of  Lynchburg  v.  Old  Dominion  Steamship  Co. 

(6  L  C.  C.  R.  632),  511,  528. 


Table  of  Cases  Cited.  21 

(Eeferences  are  to  Sections.) 

Board  of  Trade  of  New  York  v.  Penn.  R.  Co.  (4  I.  C.  C.  R.  447, 

2  I.  C.  R.  660,  734,  755,  800,  3  I.  C.  R.  417),  504,  508,  513. 
Board  of  Trade  of  Troy  v.  Alabama  M.  R.  Co.  (6  I.  C.'C.  R.  1, 

4  I.  C.  R.  348),  504,  511. 
Boards  of  Trade  Union    v.  Chicago  etc.  R.  Co.   (1  I.  C.  C.  R. 

215,  II.  C.  R.  608),  509. 
Bobbs-Merrill  Co.  v.  Straus   (139  Fed.  155,  2  Fed.  Anti-Trust 

Dec.  755),  600. 
Bobbs-Merrill  Co.  v.  Straus  (147  Fed.  15,  77  C.  C.  A.  607,  15 

L.  R.  A.  766),  600. 
Bobbs-Merrill  Co.  v.  Straus  (210  U.  S.  339,  52  L.  Ed.  1086,  28 

Sup.  Ct.  722),  600. 
Booth  &  Co.  V.  Davis   (127  Fed.  875,  2  Fed.  Anti-Trust  Dec. 

318),  600. 
Boston  &  A.  R.  Co.  v.  Boston  &  L.  R.  Co.  (1  I.  C.  C.  R.  158,  1 

I.  C.  R.  500,  571),  81,  511,  537. 
Boston  Chamber  of  Commerce  v.  Lake  Shore  &  M.  S.  R.  Co.  (1 

I.  C.  C.  R.  436,  1  I.  C.  R.  754),  67,  504. 
Boston  Fruit  &  Produce  Exchange  v.  New  York  &  N.  E.  R.  Co. 

(5  I.  C.  C.-R.  1,  3  I.  C.  R.  604),  500,  504. 
Boston  Fruit  &  Produce  Exchange  v.  New  York  &  N.  E.  R.  Co. 

(4  I.  C.  C.  R.  664,  3  I.  C.  R.  493),  500,  504. 
Bovaird  Supply  Co.  v.  Atchison,  T.  &  S.  F.  Ry.  Co.  (13  I.  C.  C. 

R.  56),  511. 
Brabham  v.  Atlantic  C.  L.  R.  Co.  (11  I.  C.  C.  R.  464),  51. 
Brady  .v.  Penn.  R.  Co.  (4  I.  C.  R.  283),  559. 
Brady  v.  Penn.  R.  Co.  (2  I.  C.  C.  R.  131,  2  I.  ^.  R.  78),  504. 
Brannon  v.  Southern  Express  Co.  (13  I.  C.  C.  R.  516),  528. 
Brass  v.  North  Dakota  ex  rel.  Stoesser   (153  U.  S.  391,  38  L. 

757,  4  I.  C.  R.  670,  14  Sup.  Ct.  857),  206. 
Breechbill  v.  Randall  (102  Ind.  528,  52  Am.  Rep.  695,  1  N.  E. 

362),  206. 
Brewer  v.  Central  of  Ga.  Ry.  Co.  (84  Fed.  258),  81,  509,  511. 
Brewer  v.  Louisville  &  N.  R.  Co.  (7  I.  C.  C.  R.  224),  509,  511. 
Buckeye  Buggy  Co.  v.  Cleveland  etc.  R.  Co.  (9  I.  C.  C.  R.  620), 

504,  508,  528. 
Budd  V.  New  York  (143  IT.  S.  517,  36  L.  Ed.  247,  4  I.  C.  R.  45, 

12  Sup.  Ct.  468),  206. 
Burgess  v.   Transcontinental  Freight  Bureau    (13   I.   C.   C.   R. 

i:>m),  155,  157,  509,  528. 


22  Table  of  Cases  Cited. 

(References  are  to  Sections.) 

Burlington,  C.  R.  &  N.  Ry.  Co.  v.  Northwestern  Fuel  Co.   (31 

Fed.  652),  82. 
Burnham,  Hanna,  Munger  Dry  Goods  Co.  v.  Chicago,  R.  I.  & 

P.  R.  Co.  (14  I.  C.  C.  R.  299),  206. 
Burrows  v.  Interurban  Met.  Co.  (156  Fed.  389),  601. 
Burton  Stock  Car  Co.  v.  Chicago,  B.  &  Q.  R.  Co.  (1  I.  C.  C.  R. 

132,  1  I.  C.  R.  329),  502,  508,  510. 
Business  Men's  Asso.  v.  Chicago  &  N.  W.  Ry.  Co.  (2  I.  C.  C.  R. 

73,  2  I.  C.  R.  48),  57,  62. 
Business  Men's  Asso.  v.  Chicago,  St.  P.,  M.  &  0.  R.  Co.  (2  I.  C. 

C.  R.  52,  2  I.  C.  R.  41),  57,  60,  504,  508. 
Business  Lien's  League  of  St.  Louis  v.  Atchison,  T.  &  S.  F.  Ry. 

Co.  (9  I.  C.  C.  R.  318),  55,  63,  82,  504,  509. 
Butchers'  etc.  Stock  Yards  Co.  v.  Louisville  &  N.  R.  Co.  (67  Fed. 

35,  14  C.  C.  A.  290),  509. 

C. 

California  Com.  Asso.  v.  Wells-Fargo  &  Co.  (14  I.  C.  C.  R.  422), 

82,  206,  508,  528. 
California  Com.  Asso.  v.  Wells-Fargo  Ex.  Co.   (16  I.  C.  C.  R. 

458),  528. 
Callaway  v.  Louisville  &  N.  R.  Co.  (7  I.  C.  C.  R.  431),  509,  511. 
Camden  Iron  AVorks  v.  United  States  (158  Fed.  561,  85  C.  C.  A. 

585),  522. 
Camors-McConnell  Co.  v.  McConnell  (140  Fed.  412,  2  Fed.  Anti- 
Trust  Dec.  817),  600. 
Campbell  v.  Northern  R.  W.  Co.  (26  Gr.  522),  512. 
Cannon  v.  Mobile  &  Ohio  R.  Co.  (11  I.  C.  C.  R.  537),  52,  62,  504, 

508,  509. 
Cannon  Falls  Elevator  Co.  v.  Chicago  etc.  R.  Co.   (10  I.  C.  C. 

R.  650),  85,  508,  509. 
Capeheart  v.  Louisville  &  N.  R.  Co.  (4  I.  C.  C.  R.  265,  3  I.  C.  R. 

278),  503,  510. 
Capital  City  Gas  Co.  v.  Central  V.  R.  Co.  (111.  C.  C.  R.  104), 

78,  508. 
Cardiff  Coal  Co.  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (13  I.  C.  C.  R. 

460),  165,  503,  510. 
Carr  v.  Northern  Pac.  R.  Co.  (9  I.  C.  C.  R.  1),  508.  513. 
Carter  v.  New  Orleans  &  N.  E.  R.  Co.  (143  Fed.  99,  74  C.  C.  A. 

293),  159,  528. 


Table  of  Cases  Cited.  .       23 

(Keferences  are  to  Sections.) 

Carter-Crume  Co.  v.  Peurrung  (86  Fed.  439,  30  C.  C.  A.  174, 

1  Fed.  Anti-Trnst  Dec.  844) ,  600. 
Cary  v.  Eureka  Springs  Ry.  Co.  (7  I.  C.  C.  R.  286),  500,  508, 

539. 
Cassatt  V.  Mitchell  Coal  &  Coke  Co.  (150  Fed.  32,  10  L.  R.  A.— 

N.  S.— 99,  81  C.  C.  A.  80),  500. 
Cator  V.  Southern  Pac.  Co.  (6  1.  C.  C.  R.  113,  4  I.  C.  R.  397), 

508. 
Cattle  Raisers'  Asso.  v.  Chicago,  B.  &  Q.  R.  Co.  (10  I.  C.  C.  R. 

83),  159,  528,  537,  545,  547,  559. 
Cattle  Raisers'  Asso.  v.  Chicago,  B.  &  Q.  R.  Co.  (11  I.  C.  C.  R. 

277),  528. 
Cattle  Raisers'  Asso.  v.  Chicago,  B.  &  Q.  R.  Co.  (12  I.  C.  C.  R. 

6),  162,  559. 
Cattle  Raisers'  Asso.  v.  Chicago,  B.  &  Q.  R.  Co.  (12  I.  C.  C.  R. 

507),  50,  206,  537,  559. 
Cattle  Raisers'  Asso.  v.  Missouri,  Kansas  &  Tex.  R.  Co.   (11  I. 

C.  C.  R.  296,  13  I.  C.  C.  R.  418),  67,  206,  504,  528,  600. 
Cattle  Raisers'  Asso.  v.  Fort  Worth  &  D.  C.  R.  Co.  (7  I.  C.  G. 

R.  555a),  559. 
Cattle  Raisers'  Asso.  of  Texas  v.  Fort  Worth  &  D.  C.  R.  Co.  (7 

I.  C.  C.  R.  513),  500,  502,  508,  509. 
Cattle  Raisers'  Asso.  of  Texas  v.  Galveston,  H.  &  S.  A.  R.  Co. 

(12  I.  C.  C.  R.  20),  503. 
Cattle  Raisers'  Asso.  v.  Missouri,  Kan.  &  Tex.  Ry.  Co.   (12  I. 

C.  C.  R.  1),  537,  539,  559. 
Cedar  Hill  Coal  &  Coke  Co.  v.  Colorado  Southern  R.  Co.  (14  I. 

C.  C.  R.  606),  528. 
Central  Coal  &  Coke  Co.  v.  Hartman  (111  Fed.  96,  49  C.  C.  A. 

244,  2  Fed.  Anti-Trust  Dec.  94),  606. 
Central  Trust  Co.  v.  Pittsburg  etc.  R.  Co.  (101  N.  Y.  Sup.  837, 

114  App.  Div.  907),  506. 
Central  of  Georgia  Ry.  Co.  v'.  McLendon,  et  al.  (157  Fed.  961), 

206. 
Central  of  Georgia  Ry.  Co.  v.  City  Mills  Co.   (128  Ga.  841,  58 

S.  E.  197),  201. 
Central  of  Georgia  Ry.  Co.  v.  Murphey  (116  Ga.  863,  43  S.  E. 

265,  60  L.  R.  A.  817),  313.     • 
Central  of  Georgia  Ry.  Co.  v.  Murphey   (196  U.  S.  194,  49  L. 

Ed.  444,  25  Sup.  Ct.  218),  313. 


24  Table  of  Cases  Cited. 

(Keiorciiecs  are  to  Sections.) 

Central  P.  K.  Co.  v.  Gallatin   (99  U.  S.  9  Otto  727,  25  L.  Ed. 

504),  3. 
Central  Stock  Yards  Co.  v.  Louisville  &  N.  R.  Co.    (112  Fed. 

823),  528,  545. 
Central  Stock  Yards  Co.  v.  Louisville  &  N.  R.  Co.    (118  Fed. 

113,  55  C.  C.  A.  63,  63  L.  R.  A.  213),  304,  510,  545. 
Central  Stock  Yards  Co.  v.  Louisville  &  N.  R.  Co.   (192  U.  S. 

568,  48  L.  Ed.  565,  24  Sup.  Ct.  339),  252,  510,  545,  580. 
Central  Yellow  Pine  Asso.  v.  Illinois  Cent.  R.  Co.   (10  I.  C.  C. 

R.  505),  52,  54,  55,  58,  59,  154,  504,  508,  509,  539,  600. 
Central  Yellow  Pine  Asso.  v.  Vicksburg,  S.  &  P.  R.  Co.   (10  I. 

C.  C.  R.  193),  84,  508,  513. 
Chamber  of  Commerce  of  Chattanooga  v.  Southern  Ry.  Co.  (10 

L  C.  C.  R.  Ill),  511. 
Chamber  of  Commerce  of  IMilwaukee  v.  Chicago,  M.  &  St.  P. 

R.  Co.  (7LC.  C.  R.  481),509. 
Chamber  of  Commerce  of  Milwaukee  v.  Flint  &  P.  M.  R.  Co.  (2 

I.  C.  C.  R.  553,  1  I.  C.  R.  774,  792,  2  I.  C.  R.  393),  508. 
Chattanooga  Foundry  &  Pipe  Works  v.  Atlanta  (203  U.  S.  390, 

51  L.  Ed.  241,  27  Sup.  Ct.  65),  528,  606. 
Chesapeake  &  Ohio  Fuel  Co.  v.  United  States    (115  Fed.  610, 

53  C.  C.  A.  256,  2  Fed.  Anti-Trust  Dec.  151),  600. 
Chesapeake  &  Ohio  R.  Co.  v.  Int.  Com.  Com.  (200  U.  S.  361,  50 

■     L.  Ed.  515,  26  Sup.  Ct.  272),  508. 
Chesapeake  &  Ohio  R.  Co.  v.  Kentucky   (179  U.  S.  388,  45  L. 

Ed.  244,  21  Sup.  Ct.  101),  307. 
Chicago  &  Alton  R.  Co.  v.  Int.  Com.  Com.  (       Fed.         ),  206. 
Chicago  &  Alton  R.  Co.  v.  New  York,  L.  E.  &  W.  R.  Co.  (24  Fed. 

516),  252. 
Chicago  &  Alton  R.  Co.  v.  Penn.  Co.  (1  I.  C.  C.  R.  86,  1  I.  C. 

R.  357),  503,  510. 
Chicago  &  Alton  R.  Co.  v.  United  States,  156  Fed.  558,  84  C.  C. 

A.  324),  513. 
Chicago  &  G.  T.  R.  Co.  v.  Wellman  (143  U.  S.  339,  36  L.  Ed. 

176,  12  Sup.  Ct.  400),  206. 
Chicago  &  ]\Iil.  Elec.  R.  Co.  v.  111.  Cent.  R.  Co.  (13  I.  C.  C.  R. 

20),  500,  504,  542.    ■ 
Chicago  &  North  W.  R.  Co.  v.  Dey,  ct  al.   (35  Fed.  866,  2  I. 

C.  R.  325,  1  L.  R.  A.  744),  206. 
Chicago  &  North  W.  R.  Co.  v.  Junod  (52  Fed.  912,  3  C.  C.  A. 

347),  528. 


Table  of  Cases  Cited.  25 

(References  are  to  Sections.) 

Cliicago  &  North  AY.  R.  Co.  v.  Jimod  (146  U.  S.  364,  36  L.  Ed. 

1002),  528. 
Chicago  &  North  W.  R.  Co.  v.  Osborne  (146  U.  S.  364,  36  L. 

Ed.  1002),  528. 
Chicago  &  North  W.  R.  Co.  v.  Osborne  (52  Fed.  912,  3  C.  C. 

A.  347),  3,  255,  511,  528,  534,  541. 
Chicago,  B.  &  Q.  R.  Co.  v.  Iowa  (v.  Cutts),  94  U.  S.  155,  24  L. 

Ed.  94),  206. 
Chicago,  B.  &  Q.  R.  Co.  v.  United  States  (157  Fed.  830,  85  C. 

C.  A.  194),  7,  95,  500. 
Chicago,  B.  &  Q.  R.  Co.  v.  U.  S.  (209  U.  S.  90,  52  L.  Ed.  698, 

28Sup..Ct.        ),95,  522. 
Chicago  Fire  Proof  etc.  Co.  v.  Chicago  &  N.  W.  R.  Co.  (8  I.  C. 

.  C.  R.  316),  509,  511. 
Chicago,  K.  &  W.  R.  Co.  v.  Pontius  (157  U.  S.  209,  39  L.  Ed. 

675,  15  Sup.  Ct.  585),  404. 
Chicago  Live  Stock  Ex.  v.  Chicago  G.  W.  R.  Co.  (10  I.  C.  C.  R. 

428),  504,  509. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Ackley  (94  U.  S.  179,  24  L.  Ed. 

99),  206. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Becker  (32  Fed.  849),  500. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Int.  Com.  Com.  (       Fed.         ), 

206. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Int.  Com.  Com.,  Coal  Cose  ( 

Fed.        ),206. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Int.  Com.  Com.,  Red  Wing  Lin- 
seed Case,  (       Fed.         ),  206. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Iowa  (145  U.  S.  631,  36  L.  Ed. 

857,  12  Sup.  Ct.  978),  500. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Minnesota  (134  U.  S.  418,  33  L. 

Ed.  970,  3  I.  C.  R.  209,  10  Sup.  Ct.  462,  702),  3,  206,  504. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Solan  (169  U.  S.  133,  42  L.  Ed. 

688,  18  Sup.  Ct.  289),  313. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Tompkins  (176  U.  S.  167,  44  L. 

Ed.  417,  20  Sup.  Ct.  336),  206. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Arkansas  (86  Ark.  412,  111  S.  W. 

456),  312. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Int.  Com.  Com.  (171  Fed.  680),  206, 

539,  555,  557. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Chicago  &  A.  R.  Co.  (3  I.  C.  C. 

R.  450,  2  I.  C.  R.  581,  721),  508. 


26  Table  of  Cases  Cited. 

(Eefereneos  are  to  Sections.) 

Chicago,  R.  I.  &  P.  R.  Co.  v.  Ilubbcll  (54  Kan.  232,  38  Pae.  266, 

5  1.  C.  R.  241),90. 
Chicago,  St.  P.,  M.  &  O.  R.  Co.  v.  United  States  (162  Fed.  835), 

513,  522. 
Chicago  Sash  &  Door  Asso.  v.  Norfolk  &  AV.  R.  Co.  (14  I.  C.  C. 

R.  594),  511. 
Chicago  Wall  Paper  IMills  v.  General  Paper  Co.  (147  Fed.  491, 

78  C.  C.  A.  607,  2  Fed.  Anti-Trust  Dec.  1027),  600. 
China  &  Japan  Trading  Co.  v.  Georgia  R.  Co.  (12  I.  C.  C.  R. 

236),  55,  504,  509,  600. 
Christie  Grain  &  Stock  Co.  v.  Board  of  Trade  of  Chicago  (125 

Fed.  161,  61  C.  C.  A.  11),  600. 
Christie  Grain  &  Stock  Co.  v.  Board  of  Trade  of  Chicago  (198 

U.  S.  236,  49  L.  Ed.  1031,  25  Sup.  Ct.  637,  2  Fed.  Anti- 

Trust  Dec.  717),  600. 
Cilley  V.  United  Shoe  Mach.  Co.  (152  Fed.  726),  606. 
Cincinnati,  H.  &  D.  R.  Co.  v.  Int.  Com.  Com.   (206  U.  S.  142, 

51  L.  Ed.  995,  27  Sup.  Ct.  648),  59,  83,  204,  205,  208,  504, 

508,  538,  539,  545. 
Cincinnati,  N.  0.  &  T.  P.  R.  Co.  v.  Int.  Com.  Com.  (162  U.  S. 

184,  40  L.  Ed.  935,  16  Sup.  Ct.  700),  7,  67,  81,  153,  204, 

500,  504,  509,  511,  534,  539. 
Cincinnati,  N.  0.  &  T.  P.  R.  Co.  v.  Int.  Com.  Com.  (5  I.  C.  R. 

391,  167  U.  S.  479,  42  L.  Ed.  243,  17  Sup.  Ct.  896),  153, 

204,  539. 
Cincinnati,  P.  B.  S.  &  P.  P.  Co.  v.  Bay  (200  U.  S.  179,  50  L.  Ed. 

428,  26  Sup.  Ct.  208,  2  Fed.  Anti-Trust  Dec.  867),  600. 
Cist  V.  Mich.  Cent.  R.  Co.  (10  I.  C.  C.  R.  217),  500,  504. 
City  Gas  Co.  v.  Baltimore  &  0.  R.  Co.   (11  I.  C.  C.  R.  371), 

508,  509. 

City  of  Atchison  v.  Mo.  Pac,  Ry.  Co.  (12  I.  C.  C.  R.  254),  559. 
City  of  Danville  v.  Southern  Ry.  Co.  (8  I.  C.  C.  R.  571),  559. 
City  of  Spokane  v.  Nor.  Pac.  Ry.  Co.  (15  I.  C.  C.  R.  376),  504, 

509,  511. 

Claflin  V.  Houseman  (93  U.  S.  3  Otto.  130,  23  L.  Ed.  833),  200. 
Clark  Co.  (Fred.  G.)  v.  Lake  Shore  &  M.  S.  Ry.  Co.  (11  I.  C.  C. 

R.  558),  541. 
Clarke  (Rowena)  v.  Central  R.  &  Bkg.  Co.  of  Ga.  (50  Fed.  338, 

15  L.  R.  A.  683,  1  Fed.  Anti-Trust  Dec.  17),  55,  600. 
Clement  v.  Louisville  &  N.  R.  Co.  (153  Fed.  979),  154,  528. 


Table  of  Cases  Cited.  27 

(Eeferences  are  to  Sections.) 

Cleveland,  C,  C.  &  St.  L.  R.  Co.  v.  Illinois  (177  U.  S.  514,  44 

L.  Ed.  868,  20  Sup.  Ct.  722),  300,  302. 
Coe  V.  Errol  (116  U.  S.  517,  29  L.  Ed.  715,  6  Sup.  Ct.  475), 

500. 
Coe  V.  Louisville  &  N.  R.  Co.  (3  Fed.  775),  3,  251,  252,  253. 
Coffeyville  Vitrified  Brick  &  Tile  Co.  v.  St.  Louis  &  S.  F.  Ry. 

Co.  (12  I.  C.  C.  R.  498),  64,  504,  537. 
Colorado  Fuel  &  Iron  Co.  v.  Southern  Pac.  Co.   (6  I.  C.  C.  R. 

488),  54,  504,  509,  513,  518. 
Commercial  Club  of  Omaha  v.  Chicago  &  N.  W.  Ry.  Co.   (7  I. 

C.  C.  R.  386),  504,  509. 
Commercial  Club  of  Omaha  v.  Chicago,  R.  I.  &  P.  Ry.  Co.  (6  I. 

C.  C.  R.  647),  503,  508,  509,  537,  541. 
Commonwealth  of  Va.  v.  Atlantic  C.  L.  R.  Co.  (106  Va.  61,  55 

S.  E.  572),  3. 
Connelly  v.  Union  Sewer  Pipe  Co.   (184  U.  S.  540,  46  L.  Ed. 

679,  22  Sup.  Ct.  431,  2  Fed.  Anti-Trust  Dec.  118),  600. 
Connor  v.  Vicksburg  &  M.  R.  Co.  (36  Fed.  273,  1  L.  R.  A.  331), 

200,  528. 
Consolidated  Forwarding  Co.  v.  Southern  Pac.  Co.   (9  I.  C.  C. 

R.  182),  503,  512,  513. 
Consolidated  Forwarding  Co.  v.  Southern  Pac.  Co.  (10  I.  C.  C. 

R.  590),  503,  512,  563. 
Continental  Securities  Co.  v.  Interborough  R.  T.  Co.  (165  Fed. 

945),  603. 
Continental  Wall  Paper  Co.  v.  Lewis  Voight  &  Sons  Co.   (212 

U.  S.  227,  53  L.  Ed.        ,  29  Sup.  Ct.  280),  600. 
Continental  Wall  Paper  Co.  v.  Lewis  Voight  &  Sons  Co.   (148 

Fed.  939,  78  C.  C.  A.  567),  600. 
Coomes  v.  Chicago,  St.  P.,  M.  &  0.  Ry.  Co.  (13  I.  C.  C.  R.  192), 

528. 
Copp  V.  Louisville  &  N.  R.  Co.  (43  La.  Ann.  511,  9  So.  441,  3 

I.  C.  R.  625,  46  Am.  &  Eng.  R.  Cases  634),  200,  528. 
Corn  Belt  Meat  Producers'  Asso.  v.  Chicago,  B.  &  Q.  R.  Co. 

(14  1.  C.  C.  R.  376),  84,  504. 
Cosmopolitan  Shipping  Co.  v.  Hamburg- American  Packet  Co., 

ct  al.  (13  I.  C.  C.  R.  266),  90,  512. 
Cotting  V.  Godard  (183  U.  S.  79,  46  L.  Ed.  92,  22  Sup.  Ct.  30), 

206. 
Councill  V.  Western  &  A.  R.  Co.  (1  I.  C.  C.  R.  339,  1  I.  C.  R. 

638),  545. 


28  Table  of  Cases  Cited. 

(Eeferences  are  to  Sections.) 

Counselman  v.  Hitchcock   (142  U.  S.  547,  35  L.  Ed.  1110,  12 

Sup.  Ct.  195),  534. 
Covington  &  Lexington   Turnpike  Road  Co.  v.   Sandford    (164 

U.  S.  578,  41  L.  Ed.  5G0,  17  Sup.  Ct.  198),  51,  53,  65,  67, 

206. 
Cowan  V.  Bond  (39  Fed.  54),  508. 
Coxe  Bros.  &  Co.  v.  Lehigh  V.  R.  Co.   (4  I.  C.  C.  R.  535,  2  I. 

C.  R.  195.  229,  3  L  C.  R.  460),  504,  508,  539. 
Cozart  V.  Southern  Ry.  Co.  (16  I.  C.  C.  R.  226),  307,  509. 
Crane  R.  Co.  v.  Phihidelphia  &  R.  R.  Co.  (15  I.  C.  C.  R.  248), 

503. 
Craven  v.  Carter-Crume  Co.   (92  Fed.  479,  34  C.  C.  A.  479,  1 

Fed.  Anti-Trust  Dec.  983),  601. 
Crews  V.  Richmond  &  D.  R.  Co.  (1  I.  C.  C.  R.  401,  1  I.  C.  R. 

703),  84,  508. 
Crouch  V.  G.  N.  R.  Co.  (11  Ex.  742,  25  L.  J.  Ex.  137),  82. 
Cutting  V.  Fla.  Ry.  &  Nav.  Co.  (46  Fed.  641),  500. 

D. 

Dallas  Freight  Bureau  v.  Austin  &  N.  W.  R.  Co.  (9  I.  C.  C.  R. 

68),  511. 
Dallas  Freight  Bureau  v.  Gulf,  C.  &  S.  F.  Ry.  Co.  (12  I.  C.  C. 

R.  223),  154,  504,  528,  537. 
Dallas  Freight  Bureau  v.  Missouri,  Kan.  &  Tex.  Ry.  Co.   (12  I. 

C.  C.  R.  427),  62,  504,  537. 
Dallas  Freight  Bureau  v.  Texas  &  Pac.  Ry.  Co.   (8  I.  C.  C.  R. 

33),  51L 
Daniel  Ball  (The)  v.  United  States  (10  Wall.  77  U.  S.  557,  19 

L.  Ed.  999),  7,  500. 
Daniels  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  et  al.  (6  I.  C.  C.  R.  458), 

253. 
Daniels  v.  Chicago,  R.  I.  &  P.  R.  Co.  (6  I.  C.  C.  R.  458),  81,  253, 

509,  511. 
Danville  v.  Southern  Ry.  Co.  (8  T.  C.  C.  R.  409),  509. 
Davenport  v.  Southern  Ry.  Co.  (11  I.  C.  C.  R.  650),  509. 
Davis  V.  Booth  (195  U.  S.  636,        L.  Ed.        ,        Sup.  Ct.         ), 

600. 
Davis  V.  Booth  (131  Fed.  31,  65  C.  C.  A.  269,  2  Fed.  Anti-Trust 

Dec.  566),  600. 
Davis  V.  Pere  Marquette  R.  Co.  (10  I.  C.  C.  R.  405),  89. 


Table  of  Cases  Cited.  29 

(Eeferences  are  to  Sections.) 

Davis  V.  State  (68  Ala.  58,  44  Am.  Rep.  128),  206. 

Davis  V.  United  States  (104  Fed.  136,  43  C.  C.  A.  448),  89,  531. 

Debs,  Re.  (158  U.  S.  564,  39  L.  Ed.  1092,  15  Sup.  Ct.  900,  1  Fed. 

Anti-Trust  Dec.  565),  600. 
Delaware,  L.  &  W.  R.  Co.  v.  Central  Stock  Yard  &  Transit  Co. 

(45  N.  J.  Eq.  50,  6  L.  R.  A.  855,  17  Atl.  146),  206. 
Delaware,  L.  &  W.  R.  Co.  v.  Frank  (110  Fed.  689,  2  Fed.  Anti- 
Trust  Dec.  81),  600. 
Delaware,  L.  &  W.  R.  Co.  v.  Int.  Com.  Com.   (155  Fed.  512), 

206,  557. 
Delaware,  L.  &  W.  R.  Co.  v.  Int.  Com.  Com.   (166  Fed.  498), 

206,  539,  557. 
Delaware,  L.  &  W.  R.  Co.  v.  Int.  Com.  Com.  (166  Fed.  499),  82, 

206,  508,  539,  557. 
Delaware,  L.  &  W.  R.  Co.  v.  Kutter  (147  Fed.  51,  77  C.  C.  A. 

315,  2  Fed.  Anti-Trust  Dee.  1021).  509,  600. 
Delaware,  L.  &  W.  R.  Co.  v.  Kutter  (203  U.  S.  588,  51  L.  Ed. 

330),  509,  600. 
Delaware  State  Grange  v.  New  York,  P.  &  N.  R.  Co.  (2  I.  C.  C. 

R.  309.  2  I.  C.  R.  187),  537. 
Delaware  State  Grange  v.  New  York,  P.  &  N.  R.  Co.  (4  I.  C.  C. 

R.  588,  3  I.  C.  R.  554),  53,  67. 
Delaware  State  Grange  v.  New  York,  P.  &  N.  R.  Co.  (5  I.  C.  C. 

R.  161,  3  I.  C.  R.  828),  559. 
Dennehy  v.  McNulta  (86  Fed.  825,  30  C.  C.  A.  422,  41  L.  R.  A. 

609,  1  Fed.  Anti-Trust  Dec.  855).  601. 
Dennison  Light  &  Power  Co.  v.  Missouri,  Kan.  &  Tex.  Ry.  Co. 

(10  I.  C.  C.  R.  337),  54. 
Denver  &  N.  O.  R.  Co.  v.  Atchison,  T.  &  S.  F.  Ry.  Co.  (15  Fed. 

650),  252. 
Desel-Boettcher  Co.  v.  Kansas  City  Southern  Ry.  Co.  (12  I.  C. 

C.  R.  220),62. 
Detroit  Board  of  Trade  v.  Grand  Trunk  R.  Co.  (2  I.  C.  C.  R. 

315,  1  I.  C.  R.  699,  2  I.  C.  R.  199),  508,  509. 
Detroit,  G.  H.  &  M.  Ry.  Co.  v.  Int.  Com.  Com.   (74  Fed.  803, 

21  C.  C.  A.  103,  43  U.  S.  App.  308),  94,  500.  504,  508,  509, 

511,  534,  537,  545. 
Dewey  Bros.  v.  Baltimore  &  0.  R.  Co.  (11  I.  C.  C.  R.  481),  88, 

511,  528. 
Diamond  Mills  Co.  v.  Boston  &  M.  R.  Co.  (9  I.  C.  C.  R.  311),  84, 

509. 


30  Tarle  of  Cases  Cited. 

(References  are  to  Sections.) 

Diffenbanj^-h  (Harry  J.)  ot  al.  v.  Int.  Coin.  Com.  (St.  Louis  Ele- 
vator Cases)   (       Fed.         ),  206. 
Doctor  Miles  Medical  Co.  v.  Jaynes  Drug  Co.   (149  Fed.  838), 

600. 
Doctor  Miles  Medical  Co.  v.  John  D.  Fark  &  Sons  Co.  (164  Fed. 

803,        CCA.        ),600. 
Dow  V.  Beidelman  (125  U.  S.  680,  31  L.  Ed.  841,  2  I.  C  R.  56,  8 

Sup.  Ct.  1028),  51,  206. 
Dudley  v.  IMayhew  (3  N.  Y.  9),  200. 
Dueber  Watcli-Case  Mfg.  Co.  v.  Howard  Watch  &  Clock  Co. 

(55  Fed.  851,  1  Fed.  Anti-Trust  Dec.  178),  606. 
Dueber  Watch-Case  Mfg.  Co.  v.  Ploward  Watch  &  Clock  Co. 

(66  Fed.  637,  14  C  C  A.  14,  1  Fed.  Anti-Trust  Dec.  421), 

603,  606. 
Duluth  Log.  Co.  V.  Minn.  &  Int.  Ry.  Co.   (15  I.  C  C  R.  627), 

159. 
Duluth  Shingle  Co.  v.  Duluth,  S.  S.  &  A.  R.  Co.  (10  I.  C  C.  R. 

489),  83,  509. 
Duncan  v.  Atchison,  T.  &  S.  F.  R.  Co.  (6  I.  C  C  R.  85,  3  I.  C 

R.  256.  4  I.  C  R.  385),  91,  504,  508,  509,  513,  528. 
Duncan  v.  Nashville,  C  &  St.  L.  Ry.  Co.  (16  I.  C  C  R.  590), 

63,  82,  85,  86,  508. 
Durham  v.  111.  Cent.  R.  Co.  (12  I.  C  C  R.  37),  511. 

E. 

East  Tenn.,  Va.  &  Ga.  Ry.  Co.  v.  Int.  Com.  Com.  (99  Fed.  52, 

39  C  C  A.  413),  55,  79,  504,  509,  511. 
East  Tenn.,  Va.  &  Ga.  Ry.  Co.  v.  Int.  Com.  Com.  (181  IT.  S.  1, 

45  L.  Ed.  719,  21  Sup.  Ct.  516),  55,  67,  79,  81,  205,  504, 

508,  509,  511,  545. 
Eaton  V.  Cincinnati,  H.  &  D.  R.  Co.   (11  I.  C  C  R.  619),  87, 

528. 
Edwards  v.  Nashville,  C  &  St.  L.  Ry.  Co.  (12  I.  C  C  R.  247), 

307. 
Edmunds  v.  111.  Cent.  R.  Co.  (80  Fed.  78),  200,  528. 
Eichenberg  v.  Southern  Pac.  Co.  (14  I.  C  C  R.  250),  500,  502, 

509. 
Ellis  V.  Inman,  Poulsen  &  Co.  (124  Fed.  956,  2  Fed.  Anti-Trust 

Dec.  268),  600. 
Ellis  V.  Inman,  Poulsen  &  Co.  (131  Fed.  182,  65  C  C.  A.  488, 

2  Fed.  Anti-Trust  Dec.  577),  600. 


Table  of  Cases  Cited.  31 

(References  are  to  Sections.) 

Elvey  V.  111.  Cent.  R.  Co.  (3  I.  C.  C.  R.  652,  2  I.  C.  R.  804), 

508,  509. 
Enterprise  Fuel  Co.  v.  Penn.  R.  Co.  (16  I.  C.  C.  R.  219),  510, 

542. 
Enterprise  Mfg.  Co.  v.  Georgia  R.  Co.  (12  I.  C.  C.  R.  451),  55, 

504,  509,  600. 
Enterprise  Transportation  Co.  v.  Penn.  R.  Co.   (12  I.  C.  C.  R. 

326),  165,  500,  502,  503. 
Erb  V.  Morasch  (177  U.  S.  584,  44  L.  Ed.  897,  20  Sup.  Ct.  819), 

302. 
Evans  v.  Union  Pac.  R.  Co.  (6  I.  C.  C.  R.  520),  62,  504. 
Ex  parte  Benson  (18  S.  C.  38),  75. 
Ex  parte  Koehler  (30  Fed.  867),  500. 
Ex  parte  Koehler  (31  Fed.  315,  12  Sawy.  446),  505,  508,  511, 

571. 
Ex  parte  Lennon  (64  Fed.  320,  22  U.  S.  App.  561),  510. 
Ex  parte  Lennon  (166  U.  S.  548,  41  L.  Ed.  1110,  17  Sup.  Ct. 

658),  510. 
Ex  parte  McNiel  (80  U.  S.  13  Wall.  236,  20  L.  Ed.  624),  200. 
Export  Shipping  Co.  v.  AVabash  R.  Co.   (14  I.  C.  C.  R.  437), 

82,  508,  528,  571,  573. 
Ex  parte  Young   (209  U.  S.  123,  52  L.  Ed.  714,  28  Sup.  Ct. 

441),  3. 

F. 

Falls  &  Co.  V.  Chicago,  R.  I.  &  P.  Ry.  Co.  (15  I.  C.  C.  R.  269), 

154,  528. 
Farmers'  Loan  &  Trust  Co.  v.  Northern  Pac.  R.  Co.   (83  Fed. 

249),  500,  511,  539,  545. 
Farmers',  Merchants'  and  Shippers'  Club  v.  Atchison,  T.  &  S. 

F.  R.  Co.  (12  I.  C.  C.  R.  351),  54,  60,  504. 
Farmers'  Warehouse  Co.  v.  Louisville  &  N.  R.  Co.   (12  I.  C.  C. 

R.  457),  504,  528. 
Farrar  v.  East  Tenn.,  Va.  &  Ga.  Ry.  Co.  (1  I.  C.  C.  R.  480,  1  I. 

C.  R.  764),  57. 
Farrar  v.  Southern  Ry.  Co.  (11  I.  C.  C.  R.  632),  56,  57,  504. 
Fewell  V.  Richmond  &  D.  R.  Co.  (7  I.  C.  C.  R.  354),  511. 
Field  V.  Barber  Asphalt  Paving  Co.  (317  Fed.  925,  2  Fed.  Anti- 
Trust  Dec.  192),  600. 
Field  V.  Barber  Asphalt  Paving  Co.  (194  U.  S.  618,  48  L.  Ed. 

1142,  24  Sup.  Ct.  784,  2  Fed.  Anti-Trust  Dec.  555),  600. 


32  Table  op  Cases  Cited. 

(Eeferenccs  are  to  Sections.) 

Fitchburg  R.  Co.  v.  Gage  (12  Gray  393),  75. 

Fitzgerald  v.  Fitzgerald  etc.  Construction  Co.  (41  Neb.  37-1,  59 

N.  W.  838),  528. 
Flaccus  Glass  Co.  v.  Cleveland  etc.  R.  Co.  (14  I.  C.  C.  R.  333), 

504. 
Flint  &  Walling  Mfg.  Co.  v.  Grand  Rapids  &  Tnd.  R.  Co.   (14 

I.  C.  C.  R.  520),  206. 
Folmer  &  Co.  v.  Great  Nor.  Ry.  Co.   (15  I.  C.  C.  R.  33),  159, 

513. 
Foot  V.  Buchanan  (113  Fed.  156,  2  Fed.  Anti-Trust  Dec.  103), 

600. 
Forest  City  Freight  Bureau  v.  Ann  Arbor  R.  Co.  (13  I.  C.  C.  R. 

118),  537. 
Fort  Smith  traffic  Bureau  v.  St.  Louis  &  S.  F.  R.  Co.   (13  I. 

C.  C.  R.  651),  504. 
Foster  v.  Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  (56  Fed.  434),  509. 
Foster  Bros.  v.  Duluth  etc.  Ry.  Co.  (14  I.  C.  C.  R.  232),  528, 

536. 
Freight  Bureau  of  Cincinnati  v.  Cincinnati,  N.  0.  &  T.  P.  Ry. 

Co.   (6  I.  C.  C.  R.  195,  4  I.  C.  R.  592),  58,  62,  504,  512, 

539,  600. 
Freight  Bureau  of  Cincinnati  v.  Cincinnati,  N.  0.  &  T.  P.  Ry. 

Co.  (7  I.  C.  C.  R.  180),  504,  509. 

G. 

Gaines  v.  Seaboard  A.  L.  Ry.  (16  I.  C.  C.  R.  471),  307,  509. 
Gallogly  V.  Cincinnati,  H.  &  D.  R.  Co.   (11  I.  C.  C.  R.  1),  87, 

528. 
Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Crow  (117  S.  ^Y.  170,        Tex. 

Civ.  App.         ),  569. 
Gardner  v.  Southern  Ry.  Co.    (10  I.  C.  C.  R.  342),  509,  511, 

528. 
Gatton  V.  Chicago,  M.  &  St.  P.  Ry.  Co.  (95  Iowa  112,  62  N.  W. 

589,  28  L.  R.  A.  556,  5  I.  C.  R.  474),  528,  572. 
General  Electric  Co.  v.  New  York  C.  &  H.  R.  R.  Co.  (14  I.  C.  C. 

R.  237),  543. 
General  Electric  Co.  v.  AA^ise  (119  Fed.  922,  2  Fed.  Anti-Trust 

Dec.  205),  600. 
Georgia  Peachgrowers'  Asso.  v.  Atlantic  C.  L.  R.  Co.  (10  I.  C. 

C.  R.  255),  53,  504. 


Table  of  Cases  Cited.  33 

(References  are  to  Sections.) 

Georgia  R.  &  B.  Co.  v.  Smith  (70  Ga.  694),  3. 

Georgia  R.  &  B.  Co.  v.  Smith  (128  U.  S.  174,  32  L.  Ed.  377,  9. 

Sup.  Ct.  47),  3. 
Gerke  Brewing  Co.  v.  Louisville  &  N.  R.  Co.  (5  I.  C.  C.  R.  596, 

4  I.  C.  R.  267),  511. 
Gibbons  v.  Ogden  (9  Wheat  1,  6  L.  Ed.  23,  70),  2. 
Gibbs  V.  McNeely   (102  Fed.  594,  2  Fed.  Anti-Trust  Dec.  25), 

606. 
Gibbs  V.  McNeely  (118  Fed.  120,  55  C.  C.  A.  70,  60  L.  R.  A. 

152,  2  Fed.  Anti-Trust  Dec.  194),  606. 
Gibbs  V.  NcNeely   (107  Fed.  210,  2  Fed.  Anti-Trust  Dec.  71), 

606. 
Girard  Point  Storage  Co.  v.  South wark  Foundry  Co.   (105  Pa. 

248),  206. 
Glade  Coal  Co.  v.  Baltimore  &  0.  R.  Co.   (10  I.  C.  C.  R.  226), 

87,  504,  509. 
Gladson  v.  Minnesota  (166  U.  S.  427,  4:^  L.  Ed.  1064,  17  Sup. 

Ct.  627),  303. 
Goff-Kirby  Coal  Co.  v.  Bessemer  &  L.  E.  R.  Co.  (15  I.  C.  C.  R. 

553),  528.    • 
Goldfield  Con.  Mines  Co.  v.  Goldfield  Miners'  Union  (159  Fed. 

500),  601. 
Goshen  Rubber  Works  v.  Single  Tube  A.  &  B.  Tire  Co.    (166 

Fed.  431,       CCA.        ),  600. 
Grain  Shippers'  Asso.  v.  111.  Cent.  R.  Co.   (8  I.  C  C  R.  158), 

51,  504,  528. 
Greater  Des  Moines  Com.  v.  Chicago  G.  W.  Ry.  Co.  (14  I.  C  C 

R.  294),  511. 
Great  Northern  Ry.  Co.  v.  Kalispell  Lumber  Co.   (165  Fed.  25, 

C  C  A.    •    ) ,  254,  572. 
Great  Northern  Ry.  Co.  v.  United  States  (155  Fed.  945,  84  C 

C  A.  93),  522,  577. 
Great  Northern  Ry.  Co.  v.  United  States  (208  U.  S.  452,  52  L. 

Ed.  569,  28  Sup.  Ct.         ),  522,  577. 
Great  Western  R.  W.  Co.  v.  Grand  Trunk  R.  W.  Co.  (25  U.  C. 

R.  37),  512. 
Great  Western  Ry.  v.  Sutton  (38  L.  J.  Ex.  177,  L.  R.  4  H.  L, 

226,  22  L.  T.  43,  18  W.  R.  92),  75,  78,  508. 
Green  Bay  Business  Men's  Asjso.  v.  Baltimore  ^  0.  R,  Co.   (15 

I.  C  C.  R.  59),  504, 


34  .  Table  op  Cx\ses  Cited. 

(Eeferenccs  are  to  Sections.) 

Grceuwall  v.  Weir   (111  N.  Y.  Sup.  235,  59  Misc.  Rep.  431), 

569. 
Greer,  Mills  &  Co.  v.  Stoller  (77  Fed.  1,  1  Fed.  Anti-Tnist  Dec. 

620),  603,  604. 
Griffin  Grocery  Co.  v.  Southern  Ry.  Co.   (11  I.  C.  C.  R.  522), 

509,  511. 
Gulf,  Colo.  &  S.  F.  R.  Co.  V.  Ilefley  (158  U.  S.  98,  39  L.  Ed. 

910,  15  Sup.  Ct.  802),  90,  153,  513,  519. 
Gulf,  Colo.  &  S.  F.  R.  Co.  V.  Miami  S.  S.  Co.   (86  Fed.  407, 

30  C.  C.  A.  142,  1  Fed.  Anti-Trust  Dec.  823),  80,  510,  606. 
Gulf,  Colo.  &  S.  F.  R.  Co.  V.  Moore  (98  Tex.  302,  83  S.  W.  362), 

200,  528. 
Gulf,  Colo.  &  S.  F.  R.  Co.  V.  Texas  (204  U.  S.  403,  51  L.  Ed.  540, 

27  Sup.  Ct.  360),  7,  500. 
Gump  V.  Baltimore  &  0.  R.  Co.  (14  I.  C.  C.  R.  98),  504,  511. 
Gustin  V.  Atchison,  T.  &  S.  F.  Ry.  Co.  (8  I.  C.  C.  R.  277),  57, 

504. 
Gustin  V.  Burlington  &  M.  R.  R.  Co.  (8  I.  C.  C.  R.  481),  511. 
Gustin  V.  111.  Cent.  R.  Co.  (7  I.  C.  C.  R.  376),  503. 

H. 

Haddock  v.  Delaware,  L.  &  W.  R.  Co.  (3  I.  C.  R.  410),  559. 
Haddock  v.  Delaware,  L.  &  W.  R.  Co.  (4  I.  C.  C.  R.  296,  3  I.  C. 

R.  302),  534. 
Hadley-Dean  Plate  Glass  Co.  v.  Highland  Glass  Co.   (143  Fed. 

242,  74  C.  C.  A.  462,  2  Fed.  Anti-Trust  Dec.  994),  600. 
Hagan  v.  Blindell   (56  Fed.  696,  6  C.  C.  A.  86,  1  Fed.  Anti- 
Trust  Dec.  182),  603. 
Hale  V.  Henkel  (201  U.  S.  43,  50  L.  Ed.  652,  26  Sup.  Ct.  370, 

2  Fed.  Anti-Trust  Dec.  874),  600. 
Hall  V.  DeCuir  (95  U.  S.  5  Otto  485,  24  L.  Ed.  547),  307. 
Hamilton  &  Brown  v.  Chattanooga,  R.  &  C.  R.  Co.  (4  I.  C.  C. 

R.  686,  3  I.  C.  R.  482),  511. 
Hanley  v.  Kansas  City  S.  R.  Co.  (187  U.  S.  617,  47  L.  Ed.  333, 

23  Sup.  Ct.  214) ,  7,  500. 
Hardenburg,  D.  &  G.  v.  Northern  Pac.  Ry.  Co.  (14  I.  C.  C.  R. 

579),  528. 
Hare  v.  L.  &  N.  W.  R.  W.  Co.  (2  J.  &  H.  480,  30  L.  J.  Ch.  817), 

512. 
Harriman  v.  Int.  Com.  Com.  (211  U.  S.  407,  53  L.  Ed.        ,  29 

Sup.  Ct.  115),  160,  534,  535,  563,  570,  576. 


Table  of  Cases  Cited.  35 

(Eeferences  are  to  Sections.) 

Harriman  v.   Northern   Securities  Co.    (132   Fed.   464,   2   Fed. 

Anti-Trust  Dec.  587),  603. 
Harriman  v.  Northern  Securities  Co.  (197  U.  S.  244,  49  L.  Ed. 

739,  25  Sup.  Ct.  493,  2  Fed.  Anti-Trust  Dec.  669),  603. 
Hartman  v.  John  D.  Park  &  Sons  (145  Fed.  358,  2  Fed.  Anti- 
Trust  Dec.  999),  600. 
Hartman  Furniture  &  Carpet  Co.  v.  Wisconsin  Cent.  R.  Co.  (15 

I.  C.  C.  R.  530),  159. 
Harvard  v.  Penn.  Co.   (4  I.  C.  C.  R.  212,  3  I.  C.  R.  257),  63, 

508,  509. 
Harvey  V.  Louisville  &  N.  R.  Co.  (5  I.  C.  C.  R.  153,  2  I.  C.  R. 

662,  3  I.  C.  R.  793),  505,  508,  571. 
Harwell  v.  Columbus  &  W.  R.  Co.  (1  I.  C.  C.  R.  236,  1  I.  C.  R. 

631),  511. 
Hastings  Malting  Co.  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (11  I.  C. 

C.  R.  675),  504,  511,  539. 
HaAvkins  v.  Wheeling  etc.  R.  Co.  (9  I.  C.  C.  R.  212),  87. 
Hays  V.  Penn.  Co.  (12  Fed.  309),  509. 

Heard  v.  Georgia  R.  Co.  (1  I.  C.  C.  R.  428,  1  I.  C.  R.  719),  509. 
Heard  v.  Georgia  R.  Co.  (3  I.  C.  C.  R.  Ill,  2  I.  C.  R.  508),  509. 
Heck  V.  East.,  Tenn.,  Va.  &  Ga.  Ry.  Co.  (1  I.  C.  C.  R.  495,  1  I. 

C.  R.  775),  500,  528,  545. 
Hennepin  Paper  Co.  v.  Northern  Pac.  R.  Co.   (12  I.  C.  C.  R. 

535),  88,  528. 
Hennington  v.  Georgia  (163  U.  S.  299,  41  L.  Ed.  166,  16  Sup. 

Ct.  1086),  301. 
Hewins  v.  New  York,  N.  H.  &  H.  R.  Co.  (10  I.  C.  C.  R.  221),  91, 

509. 
Hill  &  Bro.  V.  Nashville,  C.  &  St.  L.  Ry.  Co.    (6  I.  C.  C.  R. 

343),  511. 
Hilton  Lumber  Co.  v.  Wilmington  &  W.  R.  Co.   (9  I.  C.  C.  R. 

17),  94,  504,  508,  509. 
Holbrook  v.  St.  Paul,  M.  &  M.  R.  Co.  (1  I.  C.  C.  R.  102,  1  I.  C. 

R.  323),  537. 
Holliday  Milling  Co.  v.  Louisville  &  N.  R.  Co.  (80  Ark.  536,  98 

S.  W.  374),  528. 
Holmes  &  Co.  v.  Southern  Ry.  Co.  (8  I.  C.  C.  R.  561),  59,  504. 
Holdzkom  v.  Mich.  Cent.  R.  Co.  (9  I.  C.  C.  R.  42),  509,  511. 
Honolulu  R.  T.  Co.  v.  Hawaii  (211  U.  S.  282,  53  L.  Ed.        ,  29 

Sup.  Ct.  55),  3. 


36  Tahle  of  Cases  Cited. 

(l^oferoiicos  are  to  Sections.) 

Hope  Cotton  Oil  Co.  v.  Texas  &  Pae.  Ry.  Co.   (10  I.  C.  C.  R. 

696),  500,  528. 
Hope  Cotton  Oil  Co.  v.  Texas  &  Pac.  Ry.  Co.   (12  I.  C.  C.  R. 

265),  504. 
Hopkins  V.  United  States   (171  U.  S.  578,  43  L.  Ed.  290.  19 

Sup.  Ct.  40,  1  Fed.  Anti-Trust  Dec.  941),  600. 
Houston  &  T.  C.  R.  Co.  v.  Dumas  (43  S.  W.  609),  90. 
Houston  &  T.  C.  R.  Co.  v.  Mayes   (36  Tex.  Civ.  A  pp.  606,  83 

S.  W.  53),  306. 
Houston  &  T.  C.  R.  Co.  v.  Mayes  (201  U.  S.  321,  50  L.  Ed.  772, 

26  Sup.  Ct.  491),  305,  306. 
Howard  v.  111.  Cent.  R.  Co.   (207  U.  S.  463,  52  L.  Ed.  297,  28 

Sup.  Ct.  141),  2,  312,  404. 
Howard  Mills  Co.  v.  Missouri  Pac.  R.  Co.  (12  I.  C.  C.  R.  258), 

509. 
Howard  Supply  Co.  v.  Chesapeake  &  Ohio  Ry.  Co.    (162  Fed. 

688),  546. 
Howell  V.  New  York,  L.  E.  &  AV.  R.  Co.  (2  I.  C.  C.  R.  272,  2  I. 

C.  R.  162),  50,  53,  54,  60,  94,  504,  509. 
Hoxie  V.  New  York,  N.  H.  &  II.  R.  Co.  (73  Atl.  754,        Ct.         ), 

405. 
Hozier  v.  Caledonian  R.  Co.  (17  Sess.  Cas.  302,  1  Nev.  &  McN. 

R.  Cas.  27),  79. 
Hurlburt  v.  Lake  Shore  &  M.  S.  R.  Co.  (2  I.  C.  C.  R.  122,  2  I. 

C.  R.  81),  537,  579. 
Hussey  v.  Chicago,  R.  I.  &  P.  R.  Co.  (14  I.  C.  C.  R.  215),  559. 
Hydraulic  Press  Brick  Co.  v.  St.  Louis  &  S.  F.  R.  Co.  (13  I.  C. 

C.  R.  342),  509. 


Illinois  Central  R.  Co.  v.  Illinois  (163  U.  S.  142,  41  L.  Ed.  107, 

16  Sup.  Ct.  1096),  303. 
Illinois  Central  R.  Co.  v.  Int.  Cora.  Com.  (206  U.  S.  441,  51    L. 

Ed.  1128,  27  Sup.  Ct.  700),  3,  52,  54,  55,  59,  154,  205,  504, 

509,  539,  545,  600. 
Illinois  Central  R.  Co.  v.  Int.  Com.  Com.  (       Fed.         ) ,  206. 
Ilwaco  Ry.  &  Nav.  Co.  v.  Oregon  S.  L.  &  U.  N.  Ry.  Co.  (57  Fed. 

673,  6  C.  C.  A.  495),  509,  510. 
Imperial  Coal  Co.  v.  Pittsburg  &  L.  E.  R.  Co.   (2  I.  C.  C.  R. 

618,  2LC.  R.  436),60,  94,  5U. 


Table  of  Cases  Cited.  37 

(Eeferences  are  to  Sections.) 

Independent  Eefiners'  Asso.  v.  Penn.  K.  Co.   (6  I.  C.  C.  R.  52, 

4  I.  C.  R.  162,  369,  5  I.  C.  C.  R.  415,  2  I.  C.  R.  294),  508, 

559. 
Independent  Refiners'  Asso.  v.  Western  N.  Y.  &  P.  R.  Co.  (5  I. 

C.  C.  R.  415,  4  I.  C.  R.  162),  512. 
Independent  Refiners'  Asso.  v.  Western  N.  Y.  &  P.  R.  Co.  (6  I. 

C.  C.  R.  378),  500,  528,  546. 
Indiana  Mfg.  Co.  v.  J.  I.  Case  Threshing  I\rach.  Co.   (148  Fed. 

21),  600. 
Indiana  Mfg.  Co.  v.  J.  I.  Case  Threshing  ]\Iach.  Co.  (154  Fed. 

365,  83  C.  C.  A.  343),  600. 
Indianapolis  Freight  Bureau  v.  Cleveland,  C,  C.  &  St.  L.  Ry. 

Co.  (15  I.  C.  C.  R.  504),  509. 
International  Coal  Mining  Co.  v.  Penn.  R.  Co.  (152  Fed.  557), 

528. 
Int.  Com.  Com.  v.  Ala.  Mid.  R.  Co.    (69  Fed.  227),  504,  508, 

509,  511. 
Int.  Com.  Com.  v.  Ala.  Mid.  R.  Co.  (74  Fed.  715,  21  C.  C.  A.  51, 

41  U.  S.  App.  453,  5  I.  C.  R.  685),  55,  504,  508,  509,  511. 
Int.  Com.  Com.  v.  Ala.  Mid.  R.  Co.   (168  U.  S.  144,  42  L.  Ed. 

414,  18  Sup.  Ct.  45),  55,  67,  78,  81,  205,  504,  508,  509, 

511,  545. 
Int.  Com.  Com.  v.  Atchison,  T.  &  S.  F.  R.  Co.   (50  Fed.  295), 

511,  545. 
Int.  Com.  Com.  v.  Atchison,  T.  &  S.  F.  R.  Co.  (149  U.  S.  264, 

37  L.  Ed.  727,  13  Sup.  Ct.  837),  533. 
Int.  Com.  Com.  v.  Baird  (194  U.  S.  25,  48  L.  Ed.  860,  24  Sup. 

Ct.  563),  67,  160,  166,  534,  537,  582,  585. 
Int.  Com.  Com.  v.  Baltimore  &  0.  R.  Co.  (43  Fed.  37,  3  I.  C.  R.  ' 

392),  53,  67,  79,  504,  508,  509,  513,  571. 
Int.  Com.  Com.  v.  Baltimore  &  0.  R.  Co.  (145  U.  S.  263,  36  L. 

Ed.  699,  4  I.  C.  R.  92,  12  Sup.  Ct.  844),  55,  67,  75,  76, 

77,  79,  504,  508,  509,  513,  533,  573. 
Int.  Com.  Com.  v.  Bellaire,  Z.  &  C.  Ry.  Co.  (77  Fed.  942),  500, 

563. 
Int.  Com.  Com.  v.  Brimson  (154  U.  S.  447,  38  L.  Ed.  1047,  14 

Sup.  Ct.  1125),  3,  160,  500,  534,  535. 
Int.  Com.  Com.  v.  Chesapeake  &  Ohio  Ry.  Co.   (128  Fed.  59), 

508. 
Int.  Com.  Com.  v.  Chicago,  B.  &  Q.  R.  Co.  (94  Fed.  272),  545. 


38  Table  op  Cases  Cited. 

(Eefercnces  are  to  Sections.) 

Int.  Com.  Com.  v.  Chicago,  B.  &  Q.  R.  Co.  (98  Fed.  173),  502, 

508,  509. 

Int.  Com.  Com.  v.  Chicago,  B.  &  Q.  R.  Co.   (103  Fed.  249,  43 

C.  C.  A.  209),  502,  508,  509. 
Int.  Com.  Com.  v.  Chicago,  B.  &  Q.  R.  Co.   (186  U.  S.  320,  46 

L.  Ed.  n82,  22  Sup.  Ct.  824),  50,  502,  508,  509,  513,  545. 
Int.  Com.  Com.  v.  Chicago  G.  W.  Ry.  Co.   (141  Fed.  1003),  52, 

53,  54,  67,  504,  509. 
Int.  Com.  Com.  v.  Chicago  G.  W.  Ry.  Co.  (209  U.  S.  108,  52  L. 

Ed.  705,  28  Sup.  Ct.         ),  52,  53,  54,  55,  59,  67,  504,  509, 

511. 
Int.  Com.  Com.  v.  Cincinnati,  II.  &  D.  R.  Co.   (146  Fed.  559), 

59,  504,  508,  538,  545. 
Int.  Com.  Com.  v.  Cincinnati,  N.  0.  &  T.  P.  Ry.  Co.   (56  Fed. 

925),  500,  509,  511,  545. 
Int.  Com.  Com.  v.  Cincinnati,  N.  0.  &  T.  P.  Ry.  Co.  (64  Fed. 

981,  13  U.  S.  App.  700),  500,  534,  538,  545. 
Int.  Com.  Com.  v.  Cincinnati,  N.  0.  &  T.  P.  Ry.  Co.   (76  Fed. 

183),  504,  512,  537. 
Int.  Com.  Com.  v.  Cincinnati,  N.  0.  &  T.  P.  Ry.  Co.  (162  U.  S. 

184,  40  L.  Ed.  935,  16  Sup.  Ct.  700),  81,  500,  511,  539. 
Int.  Com.  Com.  v.  Cincinnati,  N.  0.  &  T.  P.  Ry.  Co.  (167  U.  S. 

479,  42  L.  Ed.  243,  17  Sup.  Ct.  896),  3,  50,  163,  255,  504, 

512,  534,  537,  539. 
Int.  Com.  Com.  v.  Cincinnati,  P.  &  V.  R.  Co.   (124  Fed.  624), 

509. 
Int.  Com.  Com.  v.  Clyde  S.  S.  Co.  (181  U.  S.  29,  45  L.  Ed.  729, 

21  Sup.  Ct.  512),  81,  508,  509,  511,  545. 
Int.  Com.  Com.  v.  Detroit.  G.  H.  &  M.  R.  Co.   (57  Fed.  1005, 

4  I.  C.  R.  722),  504,  508,  509,  511,  534,  537,  539,  545. 
Int.  Com.  Com.  v.  Detroit,  G.  H.  &  M.  R.  Co.   (167  U.  S.  633, 

17  Sup.  Ct.  986,  42  L.  Ed.  306),  67,  78,  81,  500,  504,  508, 

509,  511,  513,  534,  537. 

Int.  Com.  Com.  v.  Delaware  etc.  R.  Co.  (64  Fed.  723),  509,  531, 

545. 
Int.  Com.  Com.  v.  East  Tenn.,  Va.  &  Ga.  Ry.  Co.  (85  Fed.  107), 

504,  509,  511,  545. 
Int.  Com.  Com.  v.  East  Tenn.,  Va.  &  Ga.  Ry.  Co.  (99  Fed.  52, 

39  C.  C.  A.  413),  511. 
Int.  Com.  Com.  v.  Harriman  (157  Fed.  432),  535,  563. 


Table  of  Cases  Cited.  39 

(Eeferences  are  to  Sections.) 

Int.  Com.  Com.  v.  Lake  Shore  &  M.  S.  R.  Co.   (134  Fed.  942), 

504,  545. 
Int.  Com.  Com.  v.  Lehigh  Valley  Ey.  Co.  (49  Fed.  117),  545. 
Int.  Com.  Com.  v.  Lehigh  Valley  Ry.  Co.    (74  Fed.  784),  504, 

539. 
Int.  Com.  Com.  v.  Louisville  &  N.  R.  Co.   (73  Fed.  409),  504, 

508,  509,  537,  538,  539,  545. 

Int.  Com.  Cora.  v.  Louisville  &  N.  R.  Co.  (101  Fed.  146),  545. 
Int.  Com.  Com.  v.  Louisville  &  N.  R.  Co.   (102  Fed.  709),  67, 

511,  545. 
Int.  Com.  Com.  v.  Louisville  &  N-.  R.  Co.   (118  Fed.  613),  91, 

509,  545. 

Int.  Com.  Com.  v.  Louisville  &  N.  R.  Co.  (190  U.  S.  273,  47  L. 

Ed.  1047,  23  Sup.  Ct.  687),  55,  67,  81,  94,  509,  511. 
Int.  Com.  Com.  v.  Nashville,  C.  &  St.  L.  Ry.  Co.  (120  Fed.  934), 

504,  509,  511. 
Int.  Com.  Com.  v.  Philadelphia  &  R.  R.  Co.  (123  Fed.  969),  537. 
Int.  Com.  Com.  v.  Reichman  (145  Fed.  235),  500. 
Int.  Com.  Com.  v.  Southern  Pac.  Co.  (74  Fed.  42),  555. 
Int.  Com.  Com.  v.  Southern  Pac.  Co.  (123  Fed.  597),  503,  512, 

545. 
Int.  Com.  Com.  v.  Southern  Pac.  Co.  (132  Fed.  829),  503,  512, 

513,  545. 
Int.  Com.  Com.  v.  Southern  Pac.  Co.  (137  Fed.  606),  512,  545. 
Int.  Com.  Com.  v.  Southern  Ry.  Co.  (105  Fed.  703),  511,  545. 
Int.  Com.  Com.  v.  Southern  R}^  Co.  (117  Fed.  741),  509. 
Int.  Com.  Com.  v.  Southern  Ry.  Co.  (122  Fed.  800,  60  C.  C.  A. 

540),  509. 
Int.  Com.  Com.  v.  Texas  &  Pac.  Ry.  Co.    (52  Fed.  187),  504, 

508,  509. 
Int.  Com.  Com.  v.  Texas  &  Pac.  Ry.  Co.  (57  Fed.  948,  6  C.  C.  A. 

653,  20  U.  S.  App.  1,  4  L  C.  R.  408),  504,  508,  509,  513, 

555. 
Int.  Com.  Com.  v.  Western  &  A.  R.  Co.  (88  Fed.  186),  81,  504, 

508,  509,  511. 
Int.  Com.  Com.  v.  Western  &  A.  R.  Co.   (93  Fed.  83,  35  C.  C. 

A.  217),  508,  509,  511,  534. 
Int.  Com.  Com.  v.  Western  &  A.  R.  Co.  (181  U.  S.  29,  45  L.  Ed. 

729,  21  Sup.  Ct.  512),  508,  509,  511,  534. 


40  Table  of  Cases  CitUD, 

(References  are  to  Sections.) 

Int.  Com.  Com.  v.  Western  New  York  &  P.  R.  Co.  (82  Fed.  192), 

542. 
Interstate  Stock  Yards  Co.  v.  Indianapolis  U.  Ry.  Co.  (99  Fed. 

472),  252,  500,  509,  545,  580. 


Jackson  v.  St.  Louis,  A.  &  T.  R.  Co.  (1  I.  C.  R.  599),  537. 
James  v.  Germania  Iron  Co.   (107  Fed.  597,  46  C.  C.  A.  476), 

206. 
James  &  Abbott  v.  Canadian  Pac.  R.  Co.  (5  I.  C.  C.  R.  612,  4 

I.  C.  R.  274),  528. 
James  &  Mayer  Buggy  Co.  v.  Cincinnati,  N.  0.  &  T.  P.  R.  Co. 

(4  I.  C.  C.  R.  744.  2  I.  C.  R.  625,  3  I.  C.  R.  682),  500,  509. 
Jayne  v.  Loder  (149  Fed.  21,  78  C.  C.  A.  653,  7  L.  R.  A.  — N.  S. 

—984),  606. 
Jerome  Hill  Cotton  Co.  v.  Missouri,  Kan.  &  Tex.  R.  Co.  (6  I.  C. 

C.  R.  601),  504,  511. 
Jewett  Bros.  &  JeAvett  v.  Chicago,  M.  &  St.  P.  R.  Co.  (156  Fed. 

160).  3,  253,  572. 
Jolm  D.  Park  &  Sons  v.  Hartman  (153  Fed.  24,  82  C.  C.  A.  158, 

12  L.  R.  A.— N.  S.— 1135),  600. 
Johnson  v.  Chicago,  St.  Paul  etc.  R.  Co.  (9  I.  C.  C.  R.  221),  509, 

513,  528. 
Johnson  v.  Pensacola  &  P.  R.  Co.  (16  Fla.  623),  75. 
Johnson  v.  Southern  Pac.  Co.  (196  U.  S.  1,  49  L.  Ed.  363,  25 

Sup.  Ct.  158),  403. 
Johnson  v.  Towsley  (13  Wall.  72,  20  L.  Ed.  485),  206. 
Johnston-Larimer  Dry  Goods  Co.  v.  Atchison,  T.  &  S.  F.  R.  Co. 

(6L  C.  C.  R.  568),  509,  511. 
Johnston-Larimer  Dry  Goods  Co.  v.  Atchison,  T.  &  S.  F.  R.  Co. 

(12  I.  C.  C.  R.  47),  509,  511,  559. 
Johnston-Larimer  Dry  Goods  Co.  v.  New  York  &  Tex.  S.  S.  Co. 

(12  I.  C.  C.  R.  58).  509,  511. 
Johnston-Larimer  Dry  Goods  Co.  v.  Wabash  R.  Co.  (12  I.  C.  C. 

R.  51),  509. 
Joice  &  Co.  V.  111.  Cent.  R.  Co.  (15  I.  C.  C.  R.  239),  154,  528. 
Joint  Traffic  Asso.  Case  (171  U.  S.  505,  569,  43  L.  Ed.  287,  19 

Sup.  Ct.  25,  1  Fed.  Anti-Trust  Dec.  869),  55. 
Jones  V.  Eastern  Counties  R.  Co.  (3  C.  B.  N.  S.  718),  79. 
Junod  V.  Chicago  &  N.  W.  Ry.  Co.  (47  Fed.  290),  511,  528. 


Table  of  Cases  Cited.  41 

(Eeferences  are  to  Sections.) 

K. 

Kalispell  Lumber  Co.  v.  Great  N.  R.  Co.  (157  Fed.  845),  3.  253, 

254,  271,  572. 
Kansas  City  Hay  Dealers'  Asso.  v.  IMissouri  Pac.  R}^  Co.  (14  I. 

C.  C.  R.  597),  504. 
Kauffman  v.  Missouri  Pac.  Ry.  Co.  (4  I.  C.  C.  R.  417,  3  I.  C.  R. 

400).  509. 
Kemble  v.  Boston  &  A.  R.  Co.  (8  I.  C.  C.  R.  110),  500,  508,  511, 

513. 
Kentucky  &  Ind.  Bridge  Co.  v.  Louisville  &  N.  R.  Co.  (37  Fed. 

567,  2  L.  R.  A.  289,  2  I.  C.  R.  351),  3,  5,  80,  200,  500,  502, 

510.  534,  539,'  541,  545. 
Kentucky  &  Ind.  Bridge  Co.  v.  Louisville  &  N.  R.  Co.   (2  I.  C. 

C.  R.  162,  2  L  C.  R.  102),  500,  502,  510. 
Kile  &  Morgan  v.  Deepwater  Ry.  Co.  (15  I.  C.  C.  R.  235),  159, 

547. 
Kindel  v.  Adams  Express  Co.   (13  I.  C.  C.  R.  475),  51,  53,  63, 

504,  509. 
Kindel  v.  Atchison,  T.  &  S.  F.  Ry.  Co.  (8  I.  C.  C.  R.  608),  509, 

511. 
Kindel  v.  Atchison,  T.  &  S.  F.  Ry.  Co.  (9  I.  C.  C.  R.  606),  509, 

511. 
Kindel  v.  New  York,  N.  H.  &  H.  R.  Co.  (15  I.  C.  C.  R.  555),  206. 
King  V.  New  York,  N.  H.  &  H.  R.  Co.  (4  I.  C.  C.  R.  251,  3  I.  C. 

R.  272),  511. 
Kiunavey  v.  Terminal  R.  Asso.  of  St.  Louis  (81  Fed.  802),  504, 

508,  513,  528. 
Kinsley  v.  Buffalo,  N.  Y.  &  P.  R.  Co.  (37  Fed.  181),  509. 
Kiser  v.  Central  of  Ga.  Ry.  Co.  (158  Fed.  193),  3,  253,  539,  572. 
Knoxville  v.  Knoxville  Water  Co.   (212  U.  S.  1,  53  L.  Ed. 

29  Sup.  Ct.  148),  51,  52,  206. 
Knudsen -Ferguson  Fruit  Co.  v.  Chicago,  St.  P.,  M.  &  0.  R.  Co. 

(149  Fed.  973),  528. 
Knudsen-Ferguson  Fruit  Co.  v.  Chicago,  St.  P.,  M.  &  0.  R.  Co. 

(204  U.  S.  670,  51  L.  Ed.  672),  157,  528. 
Knuclsen-Ferguson  Fruit  Co.  v.  Mich.  Cent.  R.  Co.    (148  Fed. 

968,  79  C.  C.  A.  483),  50,  513,  528. 
Koch  Secret  Service  v.  Louisville  &  N.  R.  Co.   (13  I.  C.  C.  R. 

523),  509,  528. 


42  Tabt.e  of  Cases  Cited. 

(Eeferenees  are  to  Sections.) 

Koehler,  Ex  parte  (30  Fed.  867),  500. 

Koehler,  Ex  parte  (31  Fed.  315,  12  Sawy.  44G),  505,  508,  511, 

571. 
Kurry  v.  Kansas  &  C.  P.  Ry.  (58  Kan.  6,  48  Pac.  579),  505. 

L. 

LaCrosse  Mfrs.  &  Jobbers  Union  v.  Chicago,  M.  &  St.  P.  R.  Co. 

(1  I.  C.  C.  R.  629,  2  I.  C.  R.  9),  60,  94,  504. 
Lake  Shore  &  M.  S.  R.  Co.  v.  Cincinnati,  S.  &  C.  R.  Co.   (30 

Ohio  St.  604),  206. 
Lake  Shore  &  Mich  So.  R.  v.  Ohio   (173  U.  S.  285,  43  L.  Ed. 

702,  19  Sup.  Ct.  465),  303. 
Laning-Harris  Coal  &  Grain  Co.  v.  Mo.  Pac.  Ry.  Co.  (13  I.  C.  C. 

R.  148),  64,  504,  528. 
Laning-Harris  Coal  &  Grain  Co.  v.  St.  Louis  &  S.  F.  R.  Co.  (15 

L  C.  C.  R.  37),154,  528. 
Larrison  v.  Chicago  etc.  R.  Co.   (1  I.  C.  C.  R.  147,  1  I.  C.  R. 

369),  508,  513,  573. 
Larsen  Canning  Co.  (Wm.)  v.  Chicago  &  N.  W.  Ry.  Co.  (13  I. 

C.  C.  R.  286),  528. 
Larus  &  Bro.  Co.  v.  American  Tobacco  Co.  (163  Fed.  712),  600. 
La  Salle  etc.  R.  Co.  v.  Chicago  &  N.  W.  Ry.  Co.  (13  I.  C.  C.  R. 

610),  513,528,537. 
Lehigh  Valley  R.  Co.  v.  Penn.   (145  U.  S.  192,  36  L.  Ed.  672, 

4  L  C.  R.  87,  12  Sup.  Ct.  806),  7,  500. 
Lehigh  Valley  R.  Co.  v.  Rainey  (112  Fed.  487),  508,  509,  528. 
Lelmiann,  Higginson  &  Co.  v.  Southern  Pac.  Co.  (4  I.  C.  C.  R. 

1,  3  I.  C.  R.  80),  504. 
Lehmann,  Higginson  &  Co.  v.  Tex.  &  Pac.  Ry.  Co.  (5  I.  C.  C.  R. 

44,  3  I.  C.  R.  706),  513,  519. 
Lehman-Higginson  Gro.  Co.  v.  Atchison,  T.  &  S.  F.  R.  Co.  (10 

I.  C.  C.  R.  460),  509,  511. 
Lennon,  Ex  parte  (64  Fed.  320,  22  U.  S.  App.  561),  510. 
Lennon,  Ex  parte  (166  U.  S.  548,  41  L.  Ed.  1110,  17  Sup.  Ct. 

658),  510. 
Leonard  v.  Chicago,  M.  &  St.  P.  Ry.  Co.   (12  I.  C.  C.  R.  492), 

528. 
Leonard  v.  Kansas  City  S.  R.  Co.  (13  I.  C.  C.  R.  573),  500. 
Lincoln  Board  of  Trade  v.  Mo.  Pac.  R.  Co.  (2  I.  C.  C.  R.  147,  2 

T.  C.  R.  95),  509. 


Table  of  Cases  Cited.  43 

(Eeferences  are  to  Sections.) 

Lincoln  Creamery  Co.  v.  Union  Pac.  R.  Co.   (5  I.  C.  C.  R.  156, 

3  I.  C.  R.  794),  62,  504. 
Lindsay  Bros.  v.  Grand  Rapids  &  Ind.  Ry.  Co.   (15  I.  C.  C.  R. 

182),  504. 
Lippman  &  Co.  v.  111.  Cent.  R.  Co.  (2  I.  C.  C.  R.  584,  2  I.  C. 

R.  414),  60,  94,  504,508. 
Little  Rock  &  M.   R.   Co.  v.  East  Tenn.,  Va.  &  Ga.   Ry.   Co. 

(3  L  C.  C.  R.  1,  2  L  C.  R.  454),  503. 
Little  Rock  &  I\I.   R.   Co.  v.   East   Tenn.,  Va.  &   Ga.   Ry.   Co. 

(47  Fed.  771),  509,  510,534. 
Little  Rock  &  M.   R.   Co.  v.   East  Tenn.,  Va.  &  Ga.   Ry.   Co. 

(159  IT.  S.  698,  40  L.  Ed.  311,  16  Sup.  Ct.  189),  509. 
Little  Rock  etc.  R.  Co.  v.  St.  Louis  etc.  R.  Co.   (41  Fed.  559), 

510,  534,  540. 
Little  Rock  &  ]\r.  R.  Co.  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co.  (59  Fed. 

400),  80,  509.  510. 
Little  Rock  &  M.  R.  Co.  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co.   (63 

Fed.  775,  11  C.  C.  A.  417,  26  L.  R.  A.  192),  80,  509,  510. 
Loder  v.  Jayne   (142  Fed.  1010,  2  Fed.  Anti-Trust  Dec.  976), 

606. 
Loewe  v.  Lawlor  (130  Fed.  633,  2  Fed.  Anti-Trust  Dec.  563,  142 

Fed.  216,  2  Fed.  Anti-Trust  Dec.  854),  600. 
Loewe  v.  Lawlor  (148  Fed.  924),  600. 
Loewe  v.  Lawlor  (208  U.  S.  274,  52  L.  Ed.  488,  28  Sup.  Ct. 

301),  600. 
Logan  et  al.  Com.  of  Northv/estern  Grain  Asso.  v.  Chicago  & 

N.  W.  R.  Co.  (2  L  C.  C.  R.  604,  2  I.  C.  R.  431),  59,  504, 

509. 
Logan  Coal  Co.  v.  Penn.  R.  Co.   (154  Fed.  497),  509. 
Lord  V.  Goodall  N.  &  P.  S.  S.  Co.   (102  U.  S.  541,  26  L.  Ed. 

224),  500. 
Loud  V.  South  Caro.  R.  Co.  (5  I.  C.  C.  R.  529,  4  I.  C.  R.  205), 

53,  504,  528. 
Louisville  &  N.  R.  Co.  v.  Behlmer  (169  U.  S.  644,  42  L.  Ed.  889, 

18  Sup.  Ct.  502),  545. 
Louisville  &  N.  R.  Co.  v.  Behlmer  (175  U.  S.  648,  44  L.  Ed.  309, 

20  Sup.  Ct.  209),  55,  67,  81,  204,  205,  500,  511,  545. 
Louisville  &  N.  R.  Co.  v.  Eubank  (184  U.  S.  27,  46  L.  Ed.  416, 

22  Sup.  Ct.  277),  81,  308. 


44  Table  of  Cases  Cited. 

(References  are  to  Sections.) 

Louisville  &  N.  R.  Co.  v.  Int.  Com.  Com.  (108  Fed.  988,  46  C. 

C.  A.  685),  511. 
Louisville  &  N.  R.  Co.  v.  Kentucky  (21  Ky.  Law  Rep.  232,  51 

S.  W.  164,  1012,  106  Ky.  633),  308. 
Louisville  &  N.  R.  Co.  v.  Kentucky   (161  U.  S.  677,  40  L.  Ed. 

84i),  16  Sup.  Ct.  714),  309. 
Louisville  &  N.  R.  Co.  v.  Kentucky   (183  U.  S.  503,  46  L.  Ed. 

298.  22  Sup.  Ct.  95),  81,  308. 
Louisville  &  N.  R.  Co.  v.  Mottley  (211  U.  S.  149,  53  L.  Ed. 

29  Sup.  Ct.  42),  200,405. 
Louisville  &  N.  R.  Co.  v.  West  Coast  Naval  Stores  Co.  (198  U. 

S.  483,  49  L.  Ed.  1135,  25  Sup.  Ct.  745),  80. 
Louisville,  N.   O.  &   T.   Ry.   Co.  v.  Mississippi    (66  Miss.   662, 

5  L.  R.  A.  132,  6  So.  203,  2  I.  C.  R.  615,  14  Am.  St.  Rep. 

509),  307. 
Louisville,  N.  0.  &  T.  Ry.  Co.  v.  Mississippi  (133  U.  S.  587,  33 

L.  Ed.  784,  10  Sup.  Ct.  348,  2  I.  C.  R.  801),  307. 
Loup  Creek  Colliery  Co.  v.  Virginian  Ry.  Co.   (12  I.  C.  C.  R. 

471),  66,  503,  504. 
Lowenstein   v.    Evans    (69    Fed.    908,   1    Fed.    Anti-Trust   Dec. 

598),  600. 
Lo^xry  v.  Tile,  Mantel  &  Grate  Asso.  (98  Fed.  817,  1  Fed.  Anti- 
Trust  Dec.  995),  600. 
Lowry  v.  Tile,  Mantel  &  Grate  Asso.  (106  Fed.  38,  2  Fed.  Anti- 
Trust  Dee.  53),  600,  606. 
Lundquist  v.  Grand  T.  W.  Ry.  Co.  (121  Fed.  915),  508. 
Lykes  S.  S.  Co.  v.  Commercial  Union  (13  I.  C.  C.  R.  310),  500. 
Lyne  v.  Delaware,  L.  &  W.  R.  Co.  (170  Fed.  847),  528,  547. 

M. 

McAlister  v.  Henkel  (201  U.  S.  90,  50  L.  Ed.  671,  26  Sup.  Ct. 

385,  2  Fed.  Anti-Trust  Dec.  919),  600. 
McCaull-Dinsmore  Co.  v.  Chicago  G.  W.  Ry.  Co.  (14  I.  C.  C.  R. 

527),  528. 
McClelen  v.  Southern  Ry.  Co.  (6  I.  C.  C.  R.  588),  511. 
McConnell  v.  Camors-lMcConnell  Co.  (140  Fed.  987,  72  C.  C.  A. 

681,  2  Fed.  Anti-Trust  Dec.  825),  600. 
McConnell  v.  Camors-McConnell  Co.  (152  Fed.  321,  81  C.  C.  A. 

429),  600. 
McCormick  v.  Chicago,  B.  &  Q.  R.  Co.  (14  I.  C.  C.  R.  611),  507. 


Table  of  Cases  Cited.  45 

(References  are  to  Sections.) 

McCullocli  V.  Maryland  (17  U.  S.  4  Wheat  316,  4  L.  Ed.  579),  3. 
McDonald  v.  Hovey  (110  U.  S.  619,  28  L.  Ed.  269,  4  Sup.  Ct. 

142),  79. 
McDuffie  V.  Portland  &  R.  R.  Co.  (52  N.  H.  430,  13  Am.  Rep. 

72),  251. 
McGillis  &  Gibbs  Co.  v.  Chicago,  M.  &  St.  P.  R.  Co.  (15  I.  C.  C. 

R.  329),  511. 
McGrew  v.  Missouri  Pac.  Ry.  Co.  (8  I.  C.  C.  R.  630),  158,  509, 

528. 
MacLoon  v.  Boston  &  M.  R.  Co.  (9  I.  C.  C.  R.  642),  91,  504,  508, 

509. 
MacLoon  v.  Cliicago  &  N.  W.  R.  Co.  (5  I.  C.  C.  R.  84,  3  I.  C. 

R.  711),  528,  545. 
McMorran  v.  Grand  Trunk  Ry.  Co.  (3  I.  C.  C.  R.  252,  2  I.  C. 

R.  14,  604),  504,  508,  509. 
McNiel,  Ex  parte  (80  U.  S.  13  Wall  236,  20  L.  Ed.  624),  200. 
McNeill  V.  Southern  Ry.  Co.  (202  U.  S.  543,  50  L.  Ed.  1142,  26 

Sup.  Ct.  722),  304. 
McRae  T.  Ry.  Co.  v.  Southern  Ry.  Co.  (12  I.  C.  C.  R.  270),  507. 
Macon  Grocery  Co.  v.  Atlantic  C.  L.  R.  Co.    (163  Fed.  736), 

572. 
Macon  Grocery  Co.  v.  Atlantic  C.  L.  R.  Co.  (163  Fed.  738),  3, 

253,  254,  528. 
Majestic  Coal  &  Coke  Co.  v.  111.  Cent.  R.  Co.   (162  Fed.  810), 

509,  574. 
Manufacturers'  and  Jobbers'  Union  v.  Minneapolis  &  St.  L.  Ry. 

Co.  (4  I.  C.  C.  R.  79,  3  I.  C.  R.  115),  57,  62,  504. 
Marten  v.  Louisville  &  N.  R.  Co.   (9  I.  C.  C.  R.  581),  62,  509, 

511. 
Martin  v.  Chicago,  B.  &  Q.  R.  Co.  (2  I.  C.  C.  R.  25,  2  I.  C.  R. 

32),  61,  94,  537. 
Martin  v.  Hunter  (14  U.  S.  1  Wlieat.  304,  4  L.  Ed.  97),  200. 
Martin  v.  Southern  Pac.  Co.  (2  I.  C.  C.  R.  1,  2  I.  C.  R.  1),  504, 

511. 
Mattingly  v.  Penn.  Co.  (3  I.  C.  C.  R.  592,  2  I.  C.  R.  806),  500. 
Mayor  of  Bristol  v.  Virginia  &  S.  W.  Ry.  Co.   (15  I.  C.  C.  R. 

453),  504 
Mayor  etc.  of  Tifton  v.  Louisville  &  N.  R.  Co.   (9  I.  C.  C.  R. 

160),  67,  504. 


46  Table  of  Cases  Cited.  ^ 

(Eeferences  are  to  Sections.) 

Mayor  etc.  of  Wicliita  v.  Atchison,  T.  &  S.  F.  Hy.  Co.   (9  I.  C. 

C.  R.  534),  54,  85,  504,  509,  511,  GOO. 
Mayor  etc.  of  Wichita  v.  Chicago,  R.  I.  &  P.  R.  Co.  (9  I.  C.  C. 

R.  569),  509. 
Mayor  etc.  of  Widiita  v.  Missouri  Pac.  R.  Co.   (10  I.  C.  C.  R. 

35),  509. 
Meeker  v.  Lehigh  V.  R.  Co.  (162  Fed.  354),  528,  600. 
Memphis  &  L.  R.  R.  Co.  v.  Southern  Ex.  Co.  (117  U.  S.  ],  29  L. 

Ed.  791,  6  Sup.  Ct.  542),  251,  510,  541. 
Menaeho  v.  Ward  (27  Fed.  529,  23  Blatchf.  502),  251,  253. 
Menefee  Lumber  Co.  v.  Tex.  &  Pac.  Ry.  Co.  (15  I.  C.  C.  R.  49), 

528. 
Merchants'  Coal  Co.  v.  Fairmont  Coal  Co.    (160  Fed.  769,  88 

C.  C.  A.  23),  537,  574. 
Merchants'  Coal  Co.  v.  Fairmont  Coal  Co.    (163  Fed.   1021), 

574. 
Merchants'  Cotton  Compress  &  Storage  Co.  v.  Ins.  Co.  of  North 

America  (151  U.  S.  368,  38  L.  Ed.  195,  14  Sup.  Ct.  367), 

508. 
Merchants'  Freight  Bureau  of  Little  Rock  v.  ^Midland  Valley 

etc.  R.  Co.  (13  I.  C.  C.  R.  243),  509. 
Merchants'  Traffic  Asso.  v.  New  York,  N.  H.  &  II.  R.  Co.   (13 

L  C.  C.  R.  225),  504. 
Merchants'  Union  of  Spokane  Falls  v.  No.  Pac.  R.  Co.  (5  I.  C. 

C.  R.  478,  4  I.  C.  R.  183),  60,  500,  511,  539. 
Mershon  v.  Cent.  R.  of  N.  J.  (10  I.  C.  C.  R.  456),  509. 
IMetcalf  V.  American  School  Fur.  Co.    (108  Fed.   909,  2  Fed. 

Anti-Trust  Dec.  75),  606. 
Metcalf  V.  American  School  Fur.  Co.  (113  Fed.  1020,  51  C.  C.  A. 

599,  2  Fed.  Anti-Trust  Dec.  Ill),  606. 
Metcalf  V.  American  School  Fur.  Co.  (122  Fed.  115,  2  Fed.  Anti- 
Trust  Dec.  234),  606. 
IMichie  V.  New  York,  N.  H.  &  H.  R.  Co.   (151  Fed.  694),  504. 

509. 
:\richigan  Box  Co.  v.  Flint  etc.  R.  Co.  (6  I.  C.  C.  R.  335),  509. 
Michigan  Buggy  Co.  v.  Grand  Rapids  &  Ind.  R.  Co.  (15  I.  C.  C. 

R.  297),  504. 
Miles  Medicine  Co.   (Dr.)  v.  JajTies  Drug  Co.  (149  Fed.  838), 

600. 


Table  of  Cases  Cited.  47 

(References  are  to  Sections.) 

Miles  Medicine  Co.  (Dr.)  v.  John  D.  Park  &  Sons  Co.  (164  Fed. 

803,        C.  C.  A.        ) ,  600. 
Milk  Producers'  Asso.  v.  Delaware  etc.  R.  Co.  (7  I.  C.  C.  R.  92), 

500,  504,  509,  511,  537. 
Miller  V.  111.  Cent.  R.  Co.  (168  Fed.  982),  405. 
Milwaukee  etc.  Brewing  Co.  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (13 

I.  C.  C.  R.  28),  504. 
Mines  v.  Schribner  (147  Fed.  927,  2  Fed.  Anti-Trust  Dec.  1035), 

600. 
Minneapolis  &  St.  L.  R.  Co.  v.  Herrick   (127  U.  S.  210,  32  L. 

Ed.  109,  8  Sup.  Ct.  1176),  404. 
Minneapolis  &  St.  L.  R.  Co.  v.  Minnesota   (186  U.  S.  257,  46 

L.  Ed.  1151,  22  Sup.  Ct.  900),  52,  65,  504. 
Minneapolis  Threshing  INIach.  Co.  v.  Chicago,  M.  &  St.  P.  Ry. 

Co.  (14  I.  C.  C.  R.  536),  528. 
Minnesota  v.  Northern   Securities  Co.    (123   Fed.   692,   2  Fed. 

Anti-Trust  Dec.  246),  600. 
I\Iinnesota  v.  Northern  Securities  Co.   (194  U.  S.  48,  48  L.  Ed. 

870,  24  Sup.  Ct.  598,  2  Fed.  Anti-Trust  Dec.  533),  600. 
Mississippi  Railroad  Com.  v.  111.  Cent.  R.  Co.   (203  U.  S.  335, 

51  L.  Ed.  209,  27  Sup.  Ct.  90),  303. 
Missouri  &  111.  Rd.,  Tie  &  Lumber  Co.  v.  Cape  etc.  R.  Co.  (1  I. 

C.  C.  R.  30,  1  I.  C.  R.  607),  500. 
Missouri  &  Kansas  Shippers'  Asso.  v.  Atchison,  T.  &  S.  F.  Ry, 

Co.  (13  I.  C.  C.  R.  411),  159,  528,  537. 
Missouri  &  Kansas  Shippers'  Asso.  v.  Missouri,  K.  &  T.  Ry.  Co. 

(12  I.  C.  C.  R.  483),  511,  528,  537. 
Missouri,  K.  &  T.  Ry.  Co.  v.  Int.  Com.  Com.    (164  Fed.  645), 

206,  539,  540,  555. 
Missouri,  K.  &  T.  Ry.  Co.  v.  McCann  (174  U.  S.  580,  43  L.  Ed. 

1093,  19  Sup.  Ct.  755),  313. 
Missouri,  K.  &  T.  Ry.  Co.  v.  Trinity  Co.  Lumber  Co.   (1  Tex. 

Civ.  App.  553,  21  S.  W.  290),  89. 
Missouri  Pac.  R.  Co.  v.  Larabee  Flour  Mills  Co.  (211  U.  S.  612, 

53  L.  Ed.        ,  29  Sup.  Ct.  214),  300,  304,  507. 
Missouri  Pac.  R.  Co.  v.  Mackey  (127  U.  S.  205,  32  L.  Ed.  107, 

8  Sup.  Ct.  13  61),  404. 
Missouri  Pac.  R.  Co.  v.  Tex.  &  Pac.  Ry.  Co.  (31  Fed.  862),  511. 
Missouri  Pac.  R.  Co.  v.  United  States  (189  U.  S.  274,  47  L.  Ed. 

811,  23  Sup.  Ct.  507),  534,  580,  583. 


48  Tablk  of  Cases  Cited. 

(References  are  to  Sections.) 

Missouri  River  Rate  Case   (Chicago,  R.  I.  &  P.  R.  Co.  v.  Int. 

Com.  Com.,  171  Fed.  680),  206,  539,  555,  557. 
Mitchell  Coal  &  Coke  Co.  v.  Cassatt  (207  U.  S.  181,  52  L.  Ed. 

160,  28  Sup.  Ct.  108),  500. 
:\[obile  &  0.  R.  Co.  v.  Dismukes  (94  Ala.  m.  10  So.  289,  4  I.  C. 

R.  200),  90. 
Momsen  &  Co.  v.  Gila  Valley  etc.  Ry.  Co.  (14  I.  C.  C.  R.  614), 

528. 
Monarch  Tobacco  Works  v.  American  Tobacco  Co.    (165  Fed. 

774),  606. 
Montague  v.  Lowry  (193  U.  S.  38,  48  L.  Ed.  608,  24  Sup.  Ct. 

307,  2  Fed.  Anti-Trust  Dec.  327),  600,  606. 
Montague  v.  Lowry  (115  Fed.  27,  52  C.  C.  A.  621,  2  Fed.  Anti- 
Trust  Dec.  112),  600,  606. 
Montana  Cent.  R.  Co.  v.  United  States  (164  Fed.  400,        C.  C. 

A.         ),  401,  590. 
Moore  v.  Robbins  (96  U.  S.  530,  24  L.  Ed.  848),  206. 
Moore  v.  United  States  (85  Fed.  465),  29  C.  C.  A.  269,  1  Fed. 

Anti -Trust  Dec.  815),  602. 
Morgan  Grain  Co.  (A.  P.)  v.  Atlantic  C.  L.  R.  Co.  (       I.  C.  C. 

R.         ),  56. 
Morgan  v.  Missouri,  K.  &  T.  Ry.  Co.  (12  I.  C.  C.  R.  525),  500, 

519,  528. 
Morrell  v.  Union  Pac.  R.  Co.  (6  I.  C.  C.  R.  121,  4  I.  C.  R.  469), 

62,  504. 
Morse  Produce  Co.  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (15  I.  C.  C. 

R.  334),  528. 
Moseley  v.  United  States  (35  Ct.  Claims  355),  561. 
Moses  Taylor  (The)  (71  U.  S.  4  Wall  429,  18  L.  Ed.  397),  200. 
Mottley  V.  Louisville  &  N.  R.  Co.  (150  Fed.  406),  505. 
Munn  V.  Illinois   (94  U.  S.  4  Otto.  113,  24  L.  Ed.  77),  3,  50, 

206. 
ilurphy,  Wasey  &  Co.  v.  Wabash  R.  Co.  (5  I.  C.  C.  R.  122,  3 

I.  C.  R.  725),  539. 
Murray  v.  Chicago  &  N.  W.  R.  Co.   (92  Fed.  868,  35  C.  C.  A. 

62),  200,  528. 
Murray  v.  Chicago  &  X.  W.  R.  Co.  (62  Fed.  24),  200,  528. 
Muscogee  Commercial  Club  v.  Missouri,  K.  &  T.  Ry.  Co.  (13  I. 

C.  C.  R.  68),  559. 
Myers  v.  Penn.  Co.  (2  I.  C.  C,  R,  573,  2  I.  C.  R.  403,  544),  162, 

537,  559. 


Table  of  Cases  Cited.  49 

(References  are  to  Sections.) 

N. 

Nash  V.  Page  (80  Ky.  539,  44  Am.  Rep.  490),  206. 

Nashville,  Cliatta.  &  St.  L.  Ry.  Co.  v.  Alabama  (128  U.  S.  96, 

32  L.  Ed.  352,  9  Sup.  Ct.  28),  312. 
National  Folding  Box  Paper  Co.  v.  Robertson  (99  Fed.  985,  2 

Fed.  Anti-Trust  Dec.  4),  600. 
National  Harrow  Co.  v.  Hench  (76  Fed.  667,  1  Fed.  Anti-Trust 

Dec.  610),  600. 
National  Harrow  Co.  v.  Hench  (83  Fed.  36,  27  C.  C.  A.  349, 

39  L.  R.  A.  299,  1  Fed.  Anti-Trust  Dec.  742),  600. 
National  Harrow  Co.  v.  Hench  (84  Fed.  226,  1  Fed.  Anti- Trust 

Dec.  746),  600. 
National  Harrow  Co.  v.  Quick  (67  Fed.  130,  1  Fed.  Anti-Trust 

Dec.  443,  608),  600. 
National  Harrow  Co.  v.  Quick  (74  Fed.  236,  20  C.  C.  A.  410), 

600. 
National  Machy.  &  Wrecking  Co.  v.  Pittsburg  etc.  R.  Co.  (11  I. 

C.  C.  R.  581),  509. 
National  Hay  Asso.  v.  Lake  Shore  &  M.  S.  R.  Co.  (9  I.  C.  C.  R. 

264),  50,  504. 
Nebraska-Iowa  Grain  Co.  v.  Union  Pac.  R.  Co.,  15  I.  C.  C.  R. 

90),  86. 
Nelson  v.  United  States  (201  U.  S.  92,  50  L.  Ed.  673,  26  Sup. 

Ct.  358,  2  Fed.  Anti-Trust  Dec.  920),  600. 
New  Albany  Furniture  Co.  v.  Mobile  etc.  R.  Co.  (13  I.  C.  C.  R. 

594),  528. 
New  Jersey  Fruit  Ex.  v.  Cent.  R.  Co.  of  N.  J.  (2  I.  C.  C.  R.  142, 

2  I.  C.  R.  84),  500. 
Newland  v.  Northern  Pac.  R.  Co.  (6  I.  C.  C.  R.  131,  4  I.  C.  R. 

474) ,  60,  94. 
New  Orleans  Cotton  Ex.  v.  Cincinnati.  N.  0.  &  T.  P.  R.  Co. 

(2  I.  C.  C.  R.  375,  2  I.  C.  R.  289),  500,  504,  509. 
New  Orleans  Cotton  Ex.  v.  111.  Cent.  R.  Co.  (3  I.  C.  C.  R.  534, 

2  I.  C.  R.  777),  500  504,  508,  509. 
New  Orleans  Cotton  Ex.  v.  Louisville,  N.  0.  &  T.  R.  Co.   (4  I. 

C.  C.  R.  694,  3  L  C.  R.  523),  513. 
New  Orleans  Live  Stock  Ex.  v.  Tex.  &  Pac.  Ry.  Co.  (10  I.  C.  C. 

R.  327),  509. 


50  Table  of  Cases  Cited. 

(References  are  to  Sections.) 

Newport  N.  &  M.  V.  R.  Co.  v.  United  States  (61  Fed.  488,  9  C. 

C.  A.  579),  590. 
Newton  Gum  Co.  v.  Chicago,  B.  &  Q.  R.  Co.  (16  I.  C.  C.  R.  341), 

513. 
New  York  &  N.  Hy.  Co.  v.  New  York  &  N.  E.  Ry.  Co.  (50  Fed. 

867),  80,  510. 
New  York  &  N.Ry.  Co.  v.  New  York  &  N.  E.  Ry.  Co.  (4  I.  C.  C. 

R.  702.  3  1.  C.  R.  542),510. 
New  York  Board  of  Trade  v.  Pcnn.  R.  Co.  (4  I.  C.  C.  R.  447,  2 

I.  C.  R.  660,  734,  755,  800,  3  I.  C.  R.  417),  504,  508,  513. 
New  York  Hay  Asso.  v.  Penn.  R.  Co.  (14  I.  C.  C.  R.  178),  504. 
New  York  Produce  Ex.  v.  Baltimore  &  0.  R.  Co.  (7  I.  C.  C.  R. 

612),  509. 
New  York  Produce  Ex.  v.  New  York  etc.  R.  Co.  (3  I.  C.  C.  R. 

137.  2  I.  C.  R.  13.  28,  553),  508,  513,  515. 
New  York  C.  &  H.  R.  R.  Co.  v.  Int.  Com.  Com.  (168  Fed.  131), 

204,  206. 
New  York  C.  &  H.  R.  R.  Co.  v.  Int.  Com.  Com.  (       Fed.         ) , 

206. 
New  York  C.  R.  Co.  v.  Lockwood  (17  Wall  84  U.  S.  357,  21  L. 

Ed.  627),  201. 
New  York  C.  &  H.  R.  R.  Co.  v.  United  States  (165  Fed.  833, 

CCA.        ),  401,  590. 
New  York  C  &  H.  R.  R.  Co.  v.  United  States  (166  Fed.  267, 

CCA.        ),  522. 
New  York  C  &  H.  R.  R.  Co.  v.  United  States  (212  U.  S.  481, 

53  L.  Ed.         ,  29  Sup.  Ct.  304),  95,  521,  522,  523. 
New  York  C  &  H.  R.  R.  Co.  v.  United  States  (212  U.  S.  500, 

53  L.  Ed.        .  29  Sup.  Ct.  309),  95,  522. 
New  York  C  &  H.  R.  R.  Co.  v.  United  States  (212  U.  S.  509, 

53  L.  Ed.        ,  29  Sup.  Ct.      ),  153,  522. 
New  York,  N.  H.  &  H.  R.  Co.  v.  Int.  Com.  Com.  (200  U.  S.  361, 

50  L.  Ed.  515,  26  Sup.  Ct.  272),  6,  86,  92,  93,  95,  508. 
New  York,  N.  H.  &  H.  R.  Co.  v.  New  York  (165  U.  S.  628,  41  L. 

Ed.  853,  17  Sup.  Ct.  418),  311,  312. 
New  York,  N.  H.  &  H.  R.  Co.  v.  New  York  (142  N.  Y.  646,  37 

N.  E.  568),  312. 
New  York,  N.  H.  &  H.  R.  Co.  v.  Piatt  (7  I.  C  C  R.  323),  508, 

513,  516,  519. 


Table  of  Cases  Cited.  51 

(Eeferences  are  to  Sections.) 

Nicola,  Stone  &  Myers  Co.  v.  Louisville  &  N.  R.  Co.  (14  I.  C.  C. 

R.  199),  153,  154,  155,  159,  163,  528,  539,  547,  577. 
Nicolson  V.  Great  W,  Ry.  Co.  (5  C.  B.  (N.  S.)  366),  509. 
Nobles  Bros.  Gro.  Co.  v.  Fort  Worth  &  D.  C.  R.  Co.  (12  I.  C.  C. 

R.  242),  509. 
Nollenberger  v.  Missouri  Pac.  Ry.  Co.  (15  I.  C.  C.  R.  595),  159, 

537. 
NorfoUv  &  Western  R.  Co.  v.  Pennsylvania  (136  U.  S.  114,  34  L. 

Ed.  394,  10  Sup.  Ct.  958),  500. 
Northern  Pac.  Ry.  Co.  v.  Int.  Com.  Com.    (P©rtland  Gateway 

Case),  (      Fed.        ),  206. 
Northern  Pac.  R.  Co.  v.  Pacific  Coast  Lumber  Mfrs.  Asso.  (165 

Fed.  1),  3,  200,  254,  271,  572,  604. 
Northern  Pac.  R.  Co.  v.  Washington  ex  rel.  Dustin  (142  U.  S. 

492,  35  L.  Ed.  1092,  12  Sup.  Ct.  283),  510. 
Northern  Securities  Co.  v.  Harriman  (134  Fed.  331,  67  C.  C.  A. 

245,  2  Fed.  Anti-Trust  Dec.  618),  603. 
Northern  Securities  Co.  v.  United  States   (193  U.   S.  197,  24 

Sup.  Ct.  436,  48  L.  Ed.  679,  2  Fed.  Anti-Trust  Dec.  338), 

309,  600. 
North  Lonsdale  Iron  &  Steel  Co.  v.  Furriers'  L.  &  N.  W.  &  M. 

Ry.  Co.   (7  Ry.  &  Canal  Traffic  Cas.  146,  60  L.  J.  Q.  B. 

419),  94. 

O. 

Oregon  &  Washington  Lumber  Mfrs.  Asso.  v.  Union  Pac.  R.  Co. 

(14  L  C.  C.  R.  1),  206. 
Oregon  S.  L.  &  U.  N.  Ry.  Co.  v.  Ilwaco  Ry.  &  Nav.  Co.  (51  Fed. 

611),  510. 
Oregon  Short  Line  v.  Northern  Pac.  R.  Co.  (3  I.  C.  C.  R.  264, 

2  I.  C.  R.  639),  537. 
Oregon  S.  L.  &  U.  N.  Ry.  Co.  v.  Northern  Pac.  R.  Co.  (51  Fed. 

465),  80,  509,  510. 
Oregon  S.  L.  &  U.  N.  Ry.  Co.  v.  Northern  Pac.  R.  Co.  (61  Fed. 

158,  9  C.  C.  A.  409),  80,  509,  510. 
Osborn  v.  Bank  (9  Wheat.  738,  6  L.  Ed.  204),  200. 
Osborne  v.  Chicago  &  North  W.  Ry.  Co.  (48  Fed.  49),  511,  528. 
Oshkosh  Logging  Tool  Co.  v.  Chicago  &  N.  W.  Ry.  Co.  (14  I.  0. 

C.  R.  109),  547. 


52  Table  of  Cases  Cited. 

(References  are  to  Sections.) 

Otis  Elevator  Co.  v.  Geiger   (107  Fed.  131,  2  Fed.  Anti-Trust 

Dec.  66),  600. 
Ottumwa  Bridge  Co.  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (14  I.  C. 

C.  R.  121),  504,  528. 
Oxlade  v.  North  Eastern  R.  Co.  (1  C.  B.  N.  S.  454,  26  L.  J.  C. 

P.  129,  1  N.  &Mac.  72),  79. 

P. 

Pacific  Coast  Jobbers'  &  Mfgrs'.  Asso.  v.  Southern  Pac.  Co.  (12 

I.  C.  C.  R.  319),  513. 
Pacific  Coast  Lumber  Mfrs.  Asso.  v.  Northern  Pac.  R.  Co.   (14 

I.  C.  C.  R.  23),  59,  165,  542. 
Pacific  Coast  S.  S.  Co.  v.  Railroad  Comrs.    (9  Sawy.  253,  18 

Fed.  10),  500. 
Page  V.  Delaware,  L.  &  AV.  R.  Co.  (6  I.  C.  C.  R.  148,  4  I.  C.  R. 

525),  509,  531,  537. 
Page  V.  Delaware,  L.  &  W.  R.  Co.  (6  I.  C.  C.  R.  548),  504,  509, 

537,  559. 
Paine  Bros.  v.  Lehigh  V.  R.  Co.  (7  I.  C.  C.  R.  218),  82,  508. 
Pankey  v.  Richmond  &  D.  R.  Co.  (3  I.  C.  C.  R.  658,  3  I.  C.  R. 

33),  528. 
Park  &  Sons  (John  D.)  v.  Hartman  (153  Fed.  24,  82  C.  C.  A. 

158,  12  L.  R.  A.  (N.  S.)  1135),  600. 
Parks  V.  Cincinnati  &  M.  V.  R.  Co.  (10  I.  C.  C.  R.  47),  87. 
Parsons  v.  Chicago  &  N.  W.  R.  Co.   (167  U.  S.  447,  42  L.  Ed. 

231,  17  Sup.  Ct.  887),  75,  81,  508,  509,  511,  528. 
Parsons  v.  Chicago  &  N.  W.  R.  Co.  (63  Fed.  903,  11  C.  C.  A. 

489,  37  U.  S.  App.  394),  509,  511,  528. 
Paxton  Tie  Co.  v.  Detroit  Southern  R.  Co.  (10  I.  C.  C.  R  422), 

528 
PajTie-Gardner  Co.  v.  Louisville  &  N.  R.  Co.   (13  I.  C.  C.  R. 

638),  504. 
Peavey  &  Co.   (F.  H.),  Omaha  Elevator  Co.  et  al.  v.  U.  P.  R. 

Co.  and  ]\Iartin  A.  Knapp,  et  al.,  composing  Int.  Com.  Com. 

(      Fed.        ),206. 
Pecos  Mercantile  Co.  v.  Atchison,  T.  &  S.  F.  Ry.  Co.  (13  I.  C. 

C.  R.  173),  511. 
Peik  V.  Chicago  &  N.  W.  R.  Co.  (94  U.  S.  164,  24  L.  Ed.  97), 

206. 


Table  of  Cases  Cited.  53 

(Eeferenees  are  to  Sections.) 

Pennsylvania  Co.  v.  Louisville,  N.  A.  &  C.  R.  Co.  (3  I.  C.  C.  R. 

223,  2  1.  C.  R.  603),  537. 
Pennsylvania  Millers'  State  Asso.  v.  Philadelphia  &  R.  R.  Co. 
(8  I.  C.  C.  R.  531),  50,  500,  504,  511,  513. 
Pennsylvania  R.  Co.  v.  Hughes  (191  U.  S.  477,  48  L.  Ed.  268, 

24  Sup.  Ct.  132),  313. 
Pennsylvania  Retining  Co.  v.  Western  N.  Y.  &  P.  R.  Co.   (208 

U.  S.  208,  52  L.  Ed.  456,  28  Sup.  Ct.         ),  500,  528,  534, 

545,  546. 
Pennsylvania  Sugar  Refining  Co.  v.  American  Sugar  Refining 

Co.  (160  Fed.  144),  606. 
Pennsylvania  Sugar  Refining  Co.  v.  American  Sugar  Refining 

Co.  (166  Fed.  254,        C.  C.  A.        ),  606. 
People  V.  Budd  (117  N.  Y.  1,  5,  L.  R.  A.  559,  22  N.  E.  670), 

206. 
People  V.  Chicago,  I.  &  L.  Ry.  Co.  (223  111.  581,  79  N.  E.  144), 

563. 
People's  Tobacco  Co.  v.  American  Tobacco  Co.   (170  Fed.  396, 

CCA.        ),600. 
Peny  v.  Florida,  C  &  P.  R.  Co.  (5  I.  C  C  R.  97,  3  I.  C  R. 

740),  511,  528. 
Pettibone  v.  United  States  (148  U.  S.  197,  37  L.  Ed.  419,  13  Sup. 

Ct.  542),  600. 
Phelps  V.  Tex.  &  Pac.  R.  Co.  (6  I.  C  C  R.  36,  4  I.  C  R.  44, 

104,  363),  508. 
Phillips  V.  Grand  Trunk  Western  R.  Co.   (11  I.  C  C.  R.  659), 

91,  509. 
Phillips  V.  lola  Portland  Cement  Co.  (125  Fed.  593,  61  C  C  A. 

19,  2  Fed.  Anti-Trust  Dec.  284),  601. 
Phillips  V.  lola  Portland  Cement  Co.  (192  U.  S.  606,  48  L.  Ed. 

585,  24  Sup.  Ct.  850),  601. 
Phillips,  Bailey  &  Co.  v.  Louisville  &  N.  R.  Co.   (8  I.  C  C  R. 

93),  509,  511. 
Phillips-Tra wick- James  Co.  v.  Southern  Pac!  Co.  (13  I.  C  C  R. 

644),  511. 
Pickering  Phipps  v.  London  &  N.  W.  Ry.  Co.  (2  Q.  B.  D.  (1882) 

229),  67. 
Pitts  V.  St.  Louis  &  S.  F.  Ry.  Co.  (10  I.  C  C.  R.  684),  513. 
Pittsburg  etc.  R.  Co.  v.  Baltimore  &  0.  R.  Co.   (3  I.  C  C  R. 

465,  2  L  C  R.  572,  729),  508,  513,  573. 


54  Table  of  Cases  Cited. 

(Eeferenees  are  to  Sections.) 

Planters  Compress  Co.  v.  Cleveland  etc.  Ry.  Co.  (11  I.  C.  C.  R. 

382,  606),  504,  508. 
Plessy  V.  Ferguson   (163  U.  S.  537,  41  L.  Ed.  256,  16  Sup.  Ct. 

1138),  307. 
Pollock  V.  Farmers'  Loan  &  Trust  Co.    (158  U.  S.  601,  39  L. 

Ed.  1108,  15  Sup.  Ct.  912),  407. 
Ponca  City  Milling  Co.  v.  Missouri,  K.  &  T.  Ry.  Co.  (12  I.  C.  C. 

R.  26),  508,  509. 
Pond-Decker  Lumber  Co.  v.  Spencer  (86  Fed.  840,  30  C.  C.  A. 

430),  90,  513. 
Poor  V.  Chicago,  B.  &  Q.  R.  Co.  (12  L  C.  C.  R.  469),  559. 
Poor  Grain  Co.  v.  Chicago,  B.  &  Q.  R.  Co.  (12  I.  C.  C.  R.  418), 

90,  504,  513,  519,  528. 
Powhattan  Coal  &  Coke  Co.  v.  Norfolk  &  W.  R.  Co.  (13  I.  C.  C. 

R.  69),  509. 
Pooling  Freights,  Re  (115  Fed.  588),  512,  529. 
Potlach  Lumber  Co.  v.  Spokane  Falls  &  N.  Ry.  Co.   (157  Fed. 

588),  3,  253,  572. 
Prentis  v.  Atlantic  C.  L.  R.  Co.  (211  U.  S.  210,  53  L.  Ed. 

29  Sup.  Ct.  67),  3,204. 
Prescott  &  A.  C.  R.  Co.  v.  Atchison,  T.  &  S.  F.  R.  Co.  (73  Fed. 

438,  1  Fed.  Anti-Trust  Dec.  604),  80,  510,  600. 
Proctor  V.  Cincinnati,  H.  &  D.  Ry.  Co.  (4  I.  C.  C.  R.  87,  3  I.  C. 

R.  131),  59. 
Proctor  &  Gamble  v.  Cincinnati,  H.  &  D.  Ry.  Co.  (9  I.  C.  C.  R. 

440),  59,  83,  89,  504. 
Proctor  &  Gamble  v.  Cincinnati,  H.  &  D.  R.  Co.  (4  I.  C.  C.  R. 

443,  3  I.  C.  R.  374),  559. 
Producers'  Pipe  Line  Co.  v.  St.  Louis,  I.  i\r.  &  S.  Ry.  Co.   (12 

L  C.  C.  R.  186),  537. 
Providence  Coal  Co.  v.  Providence  &  W.  R.  Co.  1  I.  C.  C.  R. 

107,  1  I.  C.  R.  316,  363),  508,  509. 
Pueblo  Transportation  Asso.  v.  Southern  Pac.  Co.  (14  I.  C.  C.  R. 

82),  513. 
Pullman  Palace  Car  Co.  v.  Missouri  Pac.  R.  Co.  (115  U.  S.  587, 

29  L.  Ed.  499,  6  Sup.  Ct.  194),  510. 

Q. 

Quimby  v.  Clyde  S.  S.  Co.  (12  I.  C.  C.  R.  392),  509. 


Table  of  Cases  Cited.  55 

(References  are  to  Sections.) 

E. 

Kahway  V.  R.  Co.  v.  Delaware,  L.  &  W.  R.  Co.  (14  I.  C.  C.  R. 

191),  6,  507,  510. 
Rail  &  River  Coal  Co.  v.  Baltimore  &  0.  R.  Co.  (14  I.  C.  C.  R. 

86),  164,  206,  539. 
Railroad  Commission  Cases   (Stone  v.  Farmers'  L.  &  T.  Co.), 

(116  U.  S.  307,  29  L.  Ed.  636,  6  Sup.  Ct.  334),  3,  206. 
Railroad  Com.  of  Ala.  v.  Cent,  of  Ga.  Ry.  Co.  (170  Fed.  225, 

CCA.       ),206. 
Railroad  Com.  of  Fla.  v.  Savannah,  F.  &  AV.  R.  Co.  (5  I.  C  C 

R.  13,  3  I.  C  R.  688),  500,  537,  538. 
Railroad  Com.  of  Fla.  v.  Savannah,  F.  &  W.  R.  Co.  (5  I.  C  C  R. 

136,  3  I.  C  R.  750),  559. 
Railroad  Com.  of  Ga.,  Trammell,  et  al.,  v.  Clyde  S.  S.  Co.   (5 

I.  C  C  R.  324,  4  I.  C  R.  120),  76,  81,  500,  508,  509,  511, 

537. 
Railroad  Comrs.  of  Kansas  v.  Atchison,  T.  &  S.  F.  Ry.  Co.  (8  I. 

C  C  R.  304),  509,  511. 
Railroad  Comrs.  of  Kentucky  v.  Cincinnati,  N.  0.  &  T.  P.  R.  Co. 

(7  I.  C  C  R.  380),  511. 
Railroad  Com.  of  Kentucky  v.  Louisville  &  N.  R.  Co.  (10  I.  C 

C  R.  173),  510. 
Railroad  Com.  of  Kentucky  v.  Louisville  &  N.  R.  Co,   (13  I.  C 

C  R.  300),  511. 
Railroad  Com.  of  Mississippi  v.  111.  Cent.  R.  Co.  (203  U.  S.  335, 

51  L.  Ed.  209,  27  Sup.  Ct.  90),  303. 
Railroad  Com.  of  Ohio  v.  Wheeling  &  L.  E.  R.  Co.  (12  I.  C  C 

R.  398),  539. 
Randolph  Lumber  Co.  v.  Seaboard  A.  L.  Ry.  Co.  (13  I.  C  C  R. 

601),  509. 
Randolph  Lumber  Co.  v.  Seaboard  A.  L.  Ry.  Co.  (14  I.  C  C  R. 

338),  504,  559. 
Ransome  v.  Eastern  Counties  Ry.  Co.    (1857),   (1  C  B.  N.  S. 

437),  26  L.  J.  C  P.  91),  67,  79. 
Ratican  v.  Terminal  R.  Asso.  (114  Fed.  666),  159,  528. 
Ra worth  v.  Northern  Pac.  R.  Co.  (5  I.  C  C  R.  234,  3  I.  C  R. 

857),  500,  511. 
Rawson  v.  Newport  News  &  M.  V.  R.  Co.  (3  I.  C  C  R.  6,  266, 

2  I.  C  R.  626),  528,  545. 


56  Table  op  Cases  Cited. 

(Keferenccs  are  to  Sections.) 

Raymond  v.  Chicago,  M.  &  St.  P.  Ry.  Co.   (1  I.  C.  C.  R.  230, 

1  I.  C.  R.  627),  504,  508,  509. 
Re  Alleged  Disturbance  in  Passenger  Rates  by  Canadian  Pa- 
cific Ry.  Co.  (8  I.  C.  C.  R.  71),  511. 
Re  Alleged  Excessive  Rates  on  Food  Products  (4  I.  C.  C.  R.  48, 

116,  3  I.  C.  R.  90,  93,  151),  51,  52,  54,  59,  104,  537. 
Re  Alleged  Unlawful  Charges  for  Transportation  of  Vegetables 

(8  I.  C.  C.  R.  585),  513. 
Re  Alleged  Unlawful  Discrimination  Against  Enterprise  Trans- 
portation Co.  (11  I.  C.  C.  R.  587),  541. 
Re  Alleged  Unlawful  Rates  and  Practices  (7  I.  C.  C.  R.  240), 

7,  85. 
Re  Alleged  Unlawful  Rates  and  Practices  in  Transportation  of 

Coal  (10  I.  C.  C.  R.  473),  513. 
Re  Alleged  Unlawful  Rates  and  Practices  in  Transportation  of 

Cotton  (8  I.  C.  C.  R.  121),  500. 
Re  Alleged  Unlawful  Rates  and  Practices  in  Transportation  of 

Grain  (7  I.  C.  C.  R.  33),  508,  513. 
Re  Alleged  Unlawful  Rates  and  Practices  in  Transportation  of 

Grain  and  Grain  Products  (7  I.  C.  C.  R.  240),  508. 
Re  Alleged  Violations  of  the  Act  of  the  St.  Louis  &  S.  F.  Ry.  Co. 

(8  I.  C.  C.  R.  290),  500,  509,  511. 
Re  Alleged  Violation  of  Fourth  Section  (7  I.  C.  C.  R.  61),  511. 
Re  Allowances  to  Elevators  by  Union  Pacific  R.  Co.  (10  I.  C.  C. 

R.  309),  86. 
Re  Allowances  to  Elevators  by  Union  Pacific  R.  Co.  (12  I.  C.  C. 

R.  85),  86,  206,  539,  559. 
Re  Allowances  to  Elevators  by  Union  Pacific  R.  Co.  (13  I.  C.  C. 

R.  498),  206,  559. 
Re  Allowances  to  Elevators  by  Union  Pacific  R.  Co.  (14  I.  C.  C. 

R.  315),  86,  206,  559. 
Re  Application  of  Atchison,  T.  &  S.  F.  Ry.  Co.   (7  I.  C.  C.  R. 

593),  511. 
Re  Application  of  F.  W.  Clark  (3  I.  C.  C.  R.  649,  2  I.  C.  R. 

797),  541. 
Re  Application  of  Freemont,  E.  &  M.  V.  R.  Co.,  et  al.  (6  I.  C. 

C.  R.  293),511. 
Re  Application  of  Rome,  W.  &  0.  R.  Co.   (6  I.  C.  C.  R.  328), 

511. 


Table  of  Cases  Cited.  57 

(Eeferences  are  to  Sections.) 

Ke  Atlanta  &  West  Point  K.  Co.  (3  I.  C.  C.  R.  19,  46,  2  I.  C. 

E.  461),  61,  94,  511,  513. 
Re  Belknap  (96  Fed.  614),  531. 
Re  Carriage  of  Persons  Free  (5  I.  C.  C.  R.  69,  3  I.  C.  R.  717), 

505,  508,  571. 
Re  Class  and  Commodity  Rates  St.  Louis  to  Texas  (11  I.  C.  C. 

R.  238),  51,  55,  56,  58,  59,  504,  600. 
Re  Classification  of  Atlanta  &  West  Point  R.  Co.  (3  I.  C.  C.  R. 

19,  2  I.  C.  R.  461),  61,  94,  511,  513. 
Re  Charge  to  Grand  Jury  (66  Fed.  146),  505,  508,  509,  571. 
Re  Charge  to  Grand  Jury  (151  Fed.  834),  600. 
Re  Charges  for  Transportation  and  Refrigeration  of  Fruit  (10 

I.  C.  C.  R.  360),513. 
Re  Charges  for  Transportation  and  Refrigeration  of  Fruit   (11 

I.  C.  C.  R.  129),  50,  500,  513. 
Re  Chicago,  St.  P.  &  K.  C.  Ry.  Co.  (2  I.  C.  C.  R.  231,  2  I.  C. 

R.  137),  504. 
Re  Complaint  of  Illinois  Central  R.  Co.  (12  I.  C.  C.  R.  7),  505, 

571. 
Re  Contracts  of  Express  Companies  (16  I.  C.  C.  R.  246),  505, 

513. 
Re  Contracts  for  Free  Transportation  (16  I.  C.  C.  R.  246),  505, 

513. 
Re  Corning  (51  Fed.  205,  1  Fed.  Anti-Trust  Dec.  33),  601. 
Re  Debs   (158  U.  S.  564,  39  L.  Ed.  1092,  15  Sup.  Ct.  900,  1 

Fed.  Anti-Trust  Dee.  565),  600. 
Re   Differential   Freight   Rates    To   and   From   North   Atlantic 

Ports  (11  I.  C.  C.  R.  13),  509. 
Re  Divisions  of  Joint  Rates  and  Other  Allowances  to  Terminal 

Roads  (10  I.  C.  C.  R.  385),  508. 
Re  Exchange  of  Free  Transportation  (12  I.  C.  C.  R.  39),  500, 

505. 
Re  Export  and  Domestic  Rates  on  Grain   (8  I.  C.  C.  R.  214), 

513. 
Re  Export  Rates  from  Points  East  and  West  of  Mississippi  River 

(8  1.  C.  C.  R.  185),  513. 
Re  Express  Companies  (1  I.  C.  C.  R.  349,  1  I.  C.  R.  677),  500, 

502. 
Re  Filing  Copies  of  Joint  Tariffs  by  Traffic  Combinations  (1  I. 

C.  R.  76),  513. 


58  Tabf.e  op  Cases  Cited. 

(Refercnoos  are  to  Sections.) 

Re  Filing  of  Joint  Tariffs  (1  I.  C.  C.  R.  657,  2  I.  C.  R.  9),  513. 
Re  Form  and  Contents  of  Rate  Schedules  (6  1.  C.  C.  R.  267,  4 

I.  C.  R.  698),  513,  516. 
Re  Free  Transportation  of  Newspaper  Employees  (12  I.  C.  C.  R. 

15),  571. 
Re  Freight  Rates  Between  Memphis  and  Points  in  Arkansas  (11 

I.  C.  C.  R.  180),  509,  537. 
Re  Grand  Jury  (62  Fed.  840,  1  Fed.  Anti-Trust  Dec.  301),  600. 
Re  Greene  (52  Fed.  104,  1  Fed.  Anti-Trust  Dec.  54),  601. 
Re  Hale  (139  Fed.  496,  2  Fed.  Anti-Trust  Dec.  804),  600. 
Re  Ilohorst  (150  U.  S.  653,  37  L.  Ed.  1211,  14  Sup.  Ct.  221), 

271. 
Re  Himtingdon  (68  Fed.  881),  509. 
Re  Indian  Supplies  (1  I.  C.  R.  22),  571. 
Re  Investigation  of  Acts  of  Grand  Trunk  Ry.  of  Canada  (3  I. 

C.  C.  R.  89,  2  I.  C.  R.  496),  5,  500,  513,  537. 
Re    Interstate    Commerce    Commission,   Application    for    Order 

Against  Brimson,  et  al.  (53  Fed.  476),  534,  535. 
Re  Jurisdiction  Over  Water  Carriers   (15  I.  C.  C.  R.  205),  7, 

500. 
Re  Louisville  &  N.  R.  Co.   (1  I.  C.  C.  R.  84,  1  I.  C.  R.  287), 

60,  94. 
Re  Louisville  Underwriters   (134  U.  S.  488,  33  L.  Ed.  991,  10 

Sup.  Ct.  587),  271. 
Re  Party  Rate  Tickets  (12  I.  C.  C.  R.  95),  508,  573. 
Re  Passenger  Tariffs  (2  I.  C.  C.  R.  649,  2  I.  C.  R.  445),  508, 

513,  519,  573. 
Re  Passenger  Tariffs  and  Rate  Wars  (2  I.  C.  C.  R.  513,  2  I.  C. 

R.  340),  513,  519. 
Re  Passes  to  Clergymen  (15  I.  C.  C.  R.  45),  505. 
Re  Peasley  (44  Fed.  271),  529,  535. 

Re  Petition  of  Cincinnati,  H.  &  D.  R.  Co.,  for  Relief  Under  Sec- 
tion Four  (6  I.  C.  C.  R.  323),  511. 
Re  Petition  of  Louisville  &  N.  R.  Co.  and  Southern  Ry.  &  S.  S. 

Co.  (1  I.  C.  C.  R.  31,  57.  1  I.  C.  R.  278),  81,  511. 
Re  Petition  of  Order  of  Railway  Conductors  (1  I.  C.  C.  R.  8, 

1  I.  C.  R.  18),  537. 
Re  Petition  of  Produce  Exchange  (2  I.  C.  C.  R.  588,  2  I.  C.  R. 

412),  162,  537,  559. 
Re  Pooling  Freights  (115  Fed.  588),  512,  529. 


Table  of  Cases  Cited.  59 

(Eeferences  are  to  Sections.) 

Re  Powers  and  Procedure  of  the  Commission  (1  I.  C.  C.  R.  223, 
1  I.  C.  R.  408),  537. 

Re  Proposed  Advance  in  Freight  Rates  (9  I.  C.  C.  R.  382),  51, 
52,  57,  58,  504. 

Re  Publication  of  Joint  Tariffs  (1  I.  C.  R.  598),  513. 

Re  Railroad-Telegraph  Contracts  (12  I.  C.  C.  R.  10),-  505,  571. 

Re  Rate  Sheets  (1  I.  C.  R.  316),  513. 

Re  Rates  and  Practices  of  the  IMobile  &  Ohio  R.  Co.  (9  I.  C.  C. 
R.  373),  508. 

Re  Rates  on  Corn  and  Corn  Products  (11  I.  C.  C.  R.  212,  220), 
509. 

Re  Relative  Tank  and  Barrel  Rates  (2  I.  C.  C.  R.  365,  2  I.  C. 
R.  245),  537. 

Re  Released  Rates  (13  I.  C.  C.  R.  550),  201,  504,  513,  569. 

Re  Religious  Teachers  (1  I.  C.  R.  21),  509. 

Re  Right  of  Railroad  Companies  to  Exchange  Free  Transporta- 
tion with  Local  Transfer  Companies   (12  I.  C.  C.  R.  39), 

502,  571. 

Re  Southern  Pacific  Co.  (155  Fed.  1001),  406. 

Re  Southern  Pacific  Co.  (1  I.  C.  R.  16),  511. 

Re  Southern  Ry.  &  S.  S.  Asso.  (Re  Petition  of  Louisville  &  N.  R. 

Co.),  (1  I.  C.  C.  R.  31,  1  I.  C.  R.  278),  504,  511. 
Re  Tariffs  and  Classification  of  Atlanta  &  "West  Point  R.  Co. 

(3  I.  C.  C.  R.  19,  24,  2  L  C.  R.  461),  61,  94,  511,  513. 
Re  Tariffs  of  Transcontinental  Lines  (2  I.  C.  C.  R.  324,  2  I.  C. 

R.  203),  62,  509,  513. 
Re  Tariffs  on  Export  and  Import  Traffic   (10  I.  C.  C.  R.  55), 

513. 
Re  Terrell  (51  Fed.  213,  1  Fed.  Anti-Trust  Dec.  46),  601. 
Re  Through  Routes  and  Through  Rates   (32  I.  C.  C.  R.  163), 

503,  513,  519. 

Re  Transportation  of  Immigrants  (10  I.  C.  C.  R.  13),  512. 

Re  Transportation  of  Newspaper  Emploj'ees  (12  I.  C.  C.  R.  15), 

505. 
Re  Transportation  of  Salt  (10  I.  C.  C.  R.  148),  508. 
Re  Underbilling  (1  I.  C.  C.  R.  633,  1  I.  C.  R.  813),  530. 
Re  Unlawful  Charges  for  Transportation  of  Coal  by  Louisville 

&  N.  R.  Co.  (5  L  C.  C.  R.  466,  4  L  C.  R.  157),  508. 
Re  Unlawful  Rates  in  the  Transportation  of  Cotton  (8  I.  C.  C. 

R.  121),  84. 


60  Taiu.m  of  Cases  Cited. 

(References  are  to  Seetions.) 

Re  When  a  Cause  of  Action  Accrues  (15  1.  C.  C.  R.  201),  159, 

547. 
Re  Winn  (213  U.  S.  458,  53  L.  Ed.        ,  29  Sup.  Ct.  515),  200. 
Rea  V.  Mobile  &  0.  R.  Co.  (7  I.  C.  C.  R.  43),  60,  513,  528. 
Reagan  v.  Farmers'  Loan  &  Trust  Co.  (154  U.  S.  362,  38  L.  Ed. 

1014,  4  I.  C.  R.  560,  14  Sup.  Ct.  1047),  3,  206. 
Red  Rock  Fuel  Co.  v.  Baltimore  &  0.  R.  Co.  (11  I.  C.  C.  R.  438), 

507. 
Red  Wing  Linseed  Co.  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (15  I.  C. 

C.  R.  47),  206. 
Reid  V.  Colorado   (187  U.  S.  137,  47  L.  Ed.  108,  23  Sup.  Ct. 

92),  310. 
Rend  v.  Chicago  &  N.  W.  R.  Co.  (2  I.  C.  C.  R.  540,  1  I.  C.  R. 

793,  2  L  C.  R.  313),  94,  508. 
Reynolds  v.  Southern  Ex.  Co.  (13  I.  C.  C.  R.  536),  509. 
Reynolds  v.  Western  N.  Y.  &  P.  R.  Co.  (1  I.  C.  C.  R.  393,  1  I. 

C.  R.  685),  504. 
Rheinlander  Paper  Co.  v.  Northern  Pac.  R.  Co.  (13  I.  C.  C.  R. 

633),  509. 
Rice  V.  Atchison,  T.  &  S.  F.  R.  Co.  (4  I.  C.  C.  R.  228.  3  I.  C. 

R.  263),  511. 
Rice  V.  Cincinnati,  W.  &  B.  R.  Co.  (5  I.  C.  C.  R.  193,  3  I.  C.  R. 

841),  508,  509. 
Rice  V.  Cincinnati,  W.  &  B.  R.  Co.  (3  I.  C.  C.  R.  186,  2  I.  C.  R. 

584),  534. 
Rice  V.  Standard  Oil  Co.  (134  Fed.  464,  2  Fed.  Anti-Trust  Dec. 

633),  606. 
Rice  V.  Western  N.  Y.  &  P.  R.  Co.  (1  I.  C.  C.  R.  503,  1  I.  C.  R. 

354,  376,  443,  722),  508. 
Rice  V.  Western  N.  Y.  &  P.  R.  Co.  (2  I.  C.  C.  R.  389,  2  I.  C.  R. 

298),  504,  508,  509,  559.       ■ 
Rice  V.  Western  N.  Y.  &  P.  R.  Co.  (4  I.  C.  C.  R.  131,  3  I.  C.  R. 

162),  508,  509. 
Rice  V.  Western  N.  Y.  &  P.  R.  Co.  (6  I.  C.  C.  R.  455),  509,  528, 

537,  559. 
Richmond  &  A.  R.  Co.  v.  Patterson  (169  U.  S.  311,  42  L.  Ed.  759, 

18  Sup.  Ct.  335),  313. 
Richmond  Elevator  Co.  v.  Pere  Marquette  R.  Co.   (10  I.  C.  C. 

R.  629),  87,  528. 


Table  of  Cases  Cited.  61 

(References  are  to  Sections.) 

Richmond,  F.  &  P.  R.  Co.  v.  Richmond  (96  U.  S.  521,  2-4  L.  Ed. 

734),  302. 
Riddle,  Dean  &  Co.  v.  Baltimore  &  0.  R.  Co.  (1  I.  C.  C.  R.  372, 

1  I.  C.  R.  701),  537. 

Riddle,  Dean  &  Co.  v.  New  York,  L.  E.  &  AV.  R.  Co.  (1  I.  C.  C. 

R.  59-4,  1  I.  C.  R.  787),  528,  545. 
Riddle,  Dean  &  Co.  v.  Pittsburg  &  L.  E.  R.  Co.  (1  I.  C.  C.  R. 

490,  1  I.  C.  R.  773),  162,  537,  559. 
Riverside  Mills  v.  Atlantic  C.  L.  R.  Co.   (168  Fed.  987),  201, 

569. 
Riverside  Mills  v.  Southern  Ry.  Co.  (12  I.  C.  C.  R.  388),  504. 
Robinson  v.  Suburban  Brick  Co.  (127  Fed.  804,  62  C.  C.  A.  484, 

2  Fed.  Anti-Trust  Dec.  312),  600. 

Rock  Hill  Buggy  Co.  v.  Southern  Ry.  Co.  (11  I.  C.  C.  R.  229), 

511. 
Rogers  &  Co.  v.  Philadelphia  &  R.  R.  Co.  (12  I.  C.  C.  R.  308), 

528. 
Roswell  Commercial  Club  v.  Atchison,  T.  &  S.  F.  Ry.  Co.  (12  I. 

C.  C.  R.  339),  504. 
Roth  v.  Texas  &  Pac.  Ry.  Co.  (9  I.  C.  C.  R.  602),  537. 
Royal  Brewing  Co.  v.  Adams  Express  Co.  (15  I.  C.  C.  R.  255), 

509. 
Royal  C.  &  C.  Co.  v.  Southern  Ry.  Co.  (13  I.  C.  C.  R.  440),  206, 

509. 
Rubber  Tire  Wheel  Co.  v.  Milwaukee  Rubber  Co.  (142  Fed.  531, 

2  Fed.  Anti-Trust  Dec.  855),  600. 
Rubber  Tire  AVheel  Co.  v.  Milwaukee  Rubber  Co.  (154  Fed.  358, 

83  C.  C.  A.  336),  600. 
Ruttle  V.  Pere  Marquette  R;  Co.  (13  I.  C.  C.  R.  179),  509. 

S. 

San  Bernardino  Board  of  Trade  v.  Atchison,  T.  &  S.  F.  R.  Co. 

(4  I.  C.  C.  R.  104,  3  I.  C.  R.  138),  511,  513. 
St.  Louis  &  S.  F.  R.  Co.  v.  Gill  (156  U.  S.  649,  39  L.  Ed.  567, 

15  Sup.  Ct.  484),  52,  206. 
St.  Louis  &  S.  F.  R.  Co.  v.  United  States  (169  Fed.  69,        C.  C. 

A.        ),  401,  590. 
St.  Louis  &  S.  W.  Ry.  Co.  v.  Carsen   (34  S.  W.   (Texas)   145), 

153. 
St.  Louis  Drayage  Co.  v.  Louisville  &  N.  R.  Co.   (65  Fed.  39), 

510. 


62  Table  op  Cases  Cited. 

(References  are  to  Sections.) 

St.  Louis  Hay  &  Grain  Co.  v.  Chicago,  B.  &  Q.  R.  Co.  (11  I.  C. 

C.  R.  82),  50,  500. 
St.  Louis  Hay  &  Grain  Co.  v.  111.  Cent.  R.  Co.   (11  I.  C.  C.  R. 

486),  580. 
St.  Louis  Hay  &  Grain  Co.  v.  Mobile  &  0.  R.  Co.  (11  I.  C.  C.  R. 

90),  84,  508. 
St.  Louis  Hay  &  Grain  Co.  v.  Southern  Ry.  Co.  (149  Fed.  609), 

508,  509,  528,  538. 
San  Diego  Land  &  Town  Co.  v.  Jasper  (189  U.  S.  439,  47  L.  Ed. 

892,  23  Sup.  Ct.  571),  3. 
San  Diego  Land  &  Toa^ti  Co.  v.  National  City  (174  U.  S.  739,  43 

L.  Ed.  1154,  19  Sup.  Ct.  804),  53,  206. 
Savannah  Bureau  of  Freight  &  Transportation  v.  Charleston  & 

S.  R.  Co.  (7LC.  C.  R.  458),  511. 
Savannah  Bureau  of  Freight  &  Transportation  v.  Charleston  & 

S.  R.  Co.  (7  L  C.  C.  R.  601),  504. 
Savannah  Bureau  of  Freight  &  Transportation  v.  Louisville  & 

N.  R.  Co.  (8L  C.  C.  R.  377),  509. 
Savannah,  F.  &  W.  R.  Co.  v.  Florida  Fruit  Exchange  (167  U. 

S.  512,  42  L.  Ed.  257,  17  Sup.  Ct.  998),  500. 
Savery  v.  New  York  C.  &  H.  R.  R.  Co.  (2  I.  C.  C.  R.  338,  1  I.  C. 

R.  695,  2  L  C.  R.  210),  508. 
Sa^^yer  v.  Davis  (136  Mass.  239,  49  Am.  Rep.  27),  206. 
Schlemmer  v.  Buffalo,  R.  &  P.  R.  Co.   (205  U.  S.  1,  51  L.  Ed. 

681,  27  Sup.  Ct.  407),  403. 
Schumacher  Milling  Co.  v.  Chicago,  R.  I.  &  P.  Ry.  Co.  (6  I.  C. 

C.  R.  61,  4  I.  C.  R.  373),  52,  504,  537. 
Schutte  V.  Weir  (111  N.  Y.  Sup.  240,  59  Misc.  Rep.  438),  569. 
Schwager  &  Nettleton  v.  Great  Nor.  Ry.  Co.  (12  I.  C.  C.  R.  521), 

513. 
Scofield  V.  Lake  Shore  &  M.  S.  R.  Co.  (2  I.  C.  C.  R.  90.  2  I.  C. 

R.  67),  82,  508,  509. 
Scofield  V.  Lake  Shore  &  M.  S.  R.  Co.  (43  Ohio  St.  571,  3  N.  E. 

907,  54  Am.  Rep.  846),  251,  252. 
Seaboard  A.  L.  R.  Co.  v.  Florida  (203  U.  S.  261,  51  L.  Ed.  175, 

27  Sup.  Ct.  109),  206. 

Seaboard  A.  L.  R.  Co.  v.  Seegers  (73  S.  C.  71,  52  S.  E.  797), 

314. 
Seaboard  A.  L.  R.  Co.  v.  Seegers  (207  U.  S.  73,  52  L.  Ed.  108, 

28  Sup.  Ct.  28),  314. 


Table  of  Cases  Cited.  63 

(Eeferences  are  to  Sections.) 

Shawnee  Compress  Co.  v.  Anderson  (209  U.  S.  423,  52  L.  Ed. 

865,  28  Sup.  Ct.  572),  600. 
Sheldon  v.  Wabash  R.  Co.  (105  Fed.  785),  200. 
Shiel  &  Co.  V.  III.  Cent.  R.  Co.  (12  I.  C.  C.  R.  210),  513,  528. 
Shinlde  etc.  v.  Louisville  &  N.  R.  Co.  (62  Fed.  690),  545. 
Shippers  and  Receivers'  Bureau  of  Newark  v.  New  York,  0.  & 

W.  Ry.  Co.  (15  I.  C.  C.  R.  264),  504. 
Silverman  v.  Weir  (114  N.  Y.  Sup.  6),  569. 
Sinking  Fund  Cases  (U.  P.  R.  Co.  v.  U.  S.)    (99  U.  S.  9  Otto. 

700,  25  L.  Ed.  496),  3. 
Slater  v.  Northern  Pac.  R.  Co.   (2  I.  C.  C.  R.  359,  2  I.  C.  R. 

243),  505,  508,  529,  571. 
Smeltzer  v.  St.  Louis  &  S.  F.  R.  Co.  (158  Fed.  649),  201,  569. 
Smith  V.  Alabama  (124  U.  S.  465,  31  L.  Ed.  508,  8  Sup.  Ct.  564, 

1  L  C.  R.  804),  312. 
Smith  V.  Northern  Pae.  R.  Co.   (1  I.  C.  C.  R.  208,  1  I.  C.  R. 

611),  508. 
Smyth  V.  Ames  (169  U.  S.  446,  42  L.  Ed.  819,  18  Sup.  Ct.  418), 

51,  53,  65,  67,  206. 
Society  of  American  Florists  v.  United  States  Express  Co.   (12 

I.  C.  C.  R.  120),  504. 
Southern  Ex.  Co.  v.  Memphis  &  L.  R.  R.  Co.  (8  Fed.  799,  2  Mc- 

Cray  570),  251,  253. 
Southern  Ex.  Co.  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  (10  Fed.  210, 

3  McCray  147),  251,  253. 
Southern  Gro.  Co.  v.  Georgia  N.  R.  Co.   (12  'I.  C.  C.  R.  229), 

509. 
Southern  Ind.  Ex.  Co.  v.  United  States  Ex.  Co.   (88  Fed.  659, 

1  Fed.  Anti-Trust  Dec.  862),  510,  606. 
Southern  Ind.  Ex.  Co.  v.  United  States  Ex.  Co.  (92  Fed.  1022, 

35  C.  C.  A.  172,  1  Fed.  Anti-Trust  Dec.  992),  606. 
Southern  Pac.  Co.  v.  Arnett   (126  Fed.  75,  61  C.  C.  A.  131), 

590. 
Southern  Pae.  Co.  v.  Colorado  Fuel  &  Iron  Co.   (101  Fed.  779, 

42  C.  C.  A.  12),  504,  509,  513. 
Southern  Pac.  Co.  v.  Crenshaw  (5  Ga.  App.  675,  63  S.  E.  865), 

201,  569. 
Southern  Pac.  Co.  v.  Int.  Com.  Com.  (200  U.  S.  536,  50  L.  Ed. 

585,  26  Sup.  Ct.  330),  88,  503,  512,  513,  541,  545. 
Southern  Pac.  Co.  and  Oregon  &  Cal,  R.  Co.  v.  Int.  Com.  Com. 

(      Fed.         ),  206. 


64  Table  of  Cases  Cited. 

(References  are  to  Sections.) 

Southern  Pac.  Ter.  Co.  v.  Int.  Com.  Com.  (166  Fed.  134),  206, 

500,  509,  539,  556,  557,  584. 
Southern  Pine  Lumber  Co.  v.  Southern  Ry.  Co.  (14  I.  C.  C    R. 

195),  157,  163,  528,  537,  539. 
Southern  Ry.  Co.  v.  Frank  (5  Ga.  App.  574,  63  S.  E.  656),  201. 
Southern  Ry.  Co.  v.  Melton  (       Ga.        ,  65  S.  E.  665),  306. 
Southern  Ry.  Co.  v.  Ragsdale  (319  Ga.  773,  47  S.  E.  179),  313. 
Southern  Ry.  Co.  v.  St.  Louis  Hay  &  Grain  Co.  (153  Fed.  728, 

82  C.  C.  A.  614),  508,  509,  528,  538. 
Southern  Ry.  Co.  v.  St.  Louis  Hay  &  Grain  Co.  (214  U.  S.  297, 

53  L.  Ed.        ,  Sup.  Ct.        ),  50,  164,  205,  508,  509.  538. 
Southern  Ry.  Co.  v.  Tift   (148  Fed.  1021),  3,  54,  55,  59,  154, 

206,  504,  512,  545,  572,  574,  600. 
Southern  Ry.  Co.  v.  Tift  (206,  U.  S.  428,  51  L.  Ed.  1124,  27 

Sup.  Ct.  709),  3,  54,  55,  59,  154,  163,  206,  253,  504,  512, 

528,  537,  545,  572. 
Spartanburg  Bd.  of  Trade  v.  R.  &  D.  R.  Co.  (2  I.  C.  C.  R.  304, 

2  I.  C.  R.  193),  81,  511. 
Speigle  Co.  (Geo.  M.)  v.  Chesapeake  &  0.  R.  Co.  (11  I.  C.  C.  R. 

367),  511. 
Spillers  &  Co.  v.  Louisville  &  N.  R.  Co.    (8  I.  C.  C.  R.  364), 

519. 
Spratlin  v.  St.  Louis  &  S.  W.  Ry.  Co.   (76  Ark.  82,  88  S.  W. 

836),  153. 
i^preckles  Sugar  Refining  Co.  v.  McLain  (192  U.  S.  397,  48  L. 

Ed.  496.  24  Sup.  Ct.  376),  407. 
Sprigg  V.  Baltimore  &  0.  R.  Co.  (8  I.  C.  C.  R.  443).  573,  600. 
Spring  Valley  "Water  Works  v.  Schottler  (110  U.  S.  347,  28  L. 

Ed.  173,  4  Sup.  Ct.  48),  206. 
Squire  v.  Mich.  Cent.  R.  Co.  (4  I.  C.  C.  R.  611,  3  I.  C.  R.  515), 

509. 
Standard  Lime  &  Stone  Co.  v.  Cumberland  V.  R.  Co.  (15  I.  C. 

C.  R.  620),  509,  574. 
iStandard  Oil  Co.  v.  United  States  (164  Fed.  376,        C.  C.  A. 

),  500.  519,  522,  577,  578. 
Star  Grain  &  Lumber  Co.  v.  Atchison,  T.  &  S.  F.  Ry.  Co.  (14  I. 

C.  C.  R.  364),  165,  504,  541. 
State  of  Iowa  v.  Chicago.  iM.  &  St.  P.  R.  Co.  (4  I.  C.  R.  425, 

33  Fed.  391),  500,  509. 
State  ex  rel.  Attorney-General  v.   Columbus  Gaslight  &  Coke 

Co.  (34  Ohio  St.  572,  32  Am.  Rep.  390),  206. 


Table  of  Cases  Cited.  65 

(Eeferences  are  to  Sections.) 

Stedman  v.  Chicago  &  N.  W.  Ky.  Co.  (13  I.  C.  C.  R.  167),  503, 

528. 
Stickney  v.  Int.  Com.  Com.  (164  Fed.  638),  206,  513,  539,  555. 
Stone  V.  Detroit  etc.  R.  Co.  (3  I.  C.  C.  R.  613,  3  I.  C.  R.  60), 

511. 
Stone  V.  Farmers'  Loan  &  Trust  Co.  (116  U.  S.  307,  29  L.  Ed. 

636,  6  Sup.  Ct.  334,  1191),  3,  206. 
Stone  V.  111.  Cent.  R.  Co.  (116  U.  S.  347,  29  L.  Ed.  650,  6  Sup. 

Ct.  348,  1191),  206. 
Stone  V.  New  Orleans  &  N.  E.  R.  Co.  (116  U.  S.  352,  29  L.  Ed. 

651,  6  Sup.  Ct.  349),  206. 
Stone  V.  Wisconsin  (94  U.  S.  181,  24  L.  Ed.  102),  206. 
Stowe-Fuller  Co.  v.  Penn.  Co.  (12  I.  C.  C.  R.  215),  53,  83. 
Strait  v.^  National  Harrow  Co.  (51  Fed.  819,  1  Fed.  Anti-Trust 

Dec' 52),  600. 
Strough  V.  New  York  C.  &  H.  R.  R.  Co.  (87  N.  Y.  Sup.  30,  92 

App.  Div.  584),  528. 
Strough  V.  New  York  C.  &  H.  R.  R.  Co.  (181  N.  Y.  533,  73  N. 

E.  1133),  528. 
Suffern,  Hunt  &  Co.  v.  Ind.,  D.  &  W.  Ry.  Co.   (7  I.  C.  C.  R. 

255),  90,  513. 
Sunderland  Bros.  v.  Chicago,  R.  I.  &  P.  R.  Co.  (158  Fed.  877), 

572. 
Swift  V.  Philadelphia  &  R.  R.  Co.  (58  Fed.  858),  200,  504,  528. 
Swift  V.  Philadelphia  &  R.  R.  Co.  (64  Fed.  59),  528. 
Swift  V.  United  States  (196  U.  S.  375,  49  L.  Ed.  518,  25  Sup. 

Ct.  276,  2  Fed.  Anti-Trust  Dec.  641),  580,  585,  600. 
Sylvester  v.  Penn.  R.  Co.  (14  I.  C.  C.  R.  573),  504,  528. 

T. 

Taylor,  The  Moses  (71  U.  S.  4  Wall.  429,  18  L.  Ed.  397),  200. 

Tecumseh  Celery  Co.  v.  Cincinnati,  J.  &  M.  Ry.  Co.  (5  I.  C.  C. 
R.  663,  4  1.  C.  R.  318),  537. 

Texas  &  Pac.  Ry.  Co.  v.  Abilene  Cotton  Oil  Co.  (204  U.  S.  426, 
51  L.  Ed.  553,  27  Sup.  Ct.  350),  1,  3,  4,  8,  153,  154,  157, 
200,  205,  252,  253,  254,  270,  513,  528,  546,  572. 

Texas  &  Pac.  Ry.  Co.  v.  Cisco  Oil  ]\Iill  (204  U.  S.  449,  51  L.  Ed. 
562,  27  Sup.  Ct.  358),  513. 

Texas  &  Pac.  Ry.  Co.  v.  Int.  Com.  Com.  (162  U.  S.  197,  40  L. 
Ed.  940,  16  Sup.  Ct.  666,  5  I.  C.  R.  405),  4,  52,  55,  67,  90, 
205,  504,  508,  509,  513,  533,  534,  538,  539,  545. 


66  Table  op  Cases  Cited. 

(References  are  to  Sections.) 

Texas  &  Pac.  R.  Co.  v.  Mugg  (202  U.  S.  242,  50  L.  Ed.  1011, 

26  Sup.  Ct.  628),  90,  153,  513,  519. 
Texas  Cement  Plaster  Co.  v.  St.  Louis  &  S.  F.  R.  Co.  (12  I.  C. 

C.  R.  68),  509,  528. 
Thomas  v.  Cincinnati,  N.  0.  &  T.  P.  Ry.  Co.   (62  Fed.  803,  1 

Fed.  Anti-Trust  Dec.  266),  600. 
Thompson  v.  Penn.  R.  Co.  (10  I.  C.  C.  R.  640),  87. 
Tliompson  Lumber  Co.  v.  111.  Cent.  R.  Co.  (13  I.  C.  C.  R.  657), 

67,  157,  504. 
Thompson  Lumber  Co.  v.  111.  Cent.  R.  Co.  (14  I.  C.  C.  R.  566), 

559. 
Thomson  v.  Union  Castle  Mail  S.  S.  Co.  (149  Fed.  933),  600. 
Thomson  v.  Union  Castle  Mail  S.  S.  Co.  (166  Fed.  251,        C.  C. 

A.         ),  600. 
Thurber  v.  New  York  C.  &  II.  R.  R.  Co.  (3  I.  C.  C.  R.  473,  2  I. 

C.  R.  742),  63,  82,  504,  509. 
Tift  V.  Southern  Ry.  Co.   (10  I.  C.  C.  R.  548),  53,  54,  55,  56, 

58,  59,  67,  154,  206,  504,  512,  537,  539,  600. 
Tift  V.  Southern  Ry.  Co.  (123  Fed.  789),  1,  3,  4,  138,  200,  206, 

252,  253,  255,  504,  572,  574. 
Tift  V.  Southern  Ry.  Co.  (138  Fed.  753,  2  Fed.  Anti-Trust  Dec. 

733),  3,  4,  55,  59,  154,  206,  252,  402,  504,  512,  537,  545,  572, 

574,  600. 
Tift  V.  Southern  Ry.  Co.   (159  Fed.  555),  3,  154,  206,  504,  528. 
Tileston  Milling  Co.  v.  Northern  Pac.  R.   Co.    (8  I.  C.   C.  R. 

346),  67,  504,  511. 
Tilley  v.  Railroad  Co.  (5  Fed.  641,  4  Woods  427),  206. 
Toledo  etc.  R.  Co.  v.  Penn.  Co.  (54  Fed.  730,  19  L.  R.  A.  387, 

5  L  C.  R.  545,  22  U.  S.  App.  561),  200,  252,  271,  510,  526, 
528,  529. 

Tomlin-Harris  Mach.  Co.  v.  Louisville  &  N.  R.  Co.   (12  I.  C.  C. 

R.  133),  509. 
Topeka  Banana  Dealers'  Asso  v.  St.  Louis  &  S.  F.  R.  Co.   (13 

L  C.  C.  R.  620),  511. 
Tozer  v.  United  States  (52  Fed.  917),  509,  522,  529. 
Traer  v.  Chicago  &  A.  R.  Co.  (13  I.  C.  C.  R.  451),  206,  509. 
Traffic  Bureau,  Merchants'  Exchange  of  St.  Louis  v.  Chicago,  B. 

6  Q.  R.  Co.  (14  L  C.  C.  R.  317),  86,  206. 

Traffic  Bureau,  Merchants'  Exchange  of  St.  Louis  v.  Chicago,  B. 
&Q.  R.  Co.  (14  1.  C.  C.  R.  551),  550. 


Table  of  Cases  Cited.  67 

(Eeferences  are  to  Sections.) 

Traffic  Bureau  v.  Missouri  Pac.  R.  Co.  (13  I.  C.  C.  R.  11),  206. 

509. 
Trammell,  Railroad  Comrs.  of  Ga.  v.  Clyde  S.  S.  Co.  (5  I.  C.  C. 

R.  324,  4  I.  C.  R.  120),  76,  81,  500,  508,  509,  511,  537. 

Ulrick  V.  Lake  Shore  etc.  R.  Co.  (9  I.  C.  C.  R.  495),  511. 
Union  Pac.  R.  Co.,  Northern  Pac.  Ry.  Co.  Great  Nor.  R.  Co.  v. 

Int.  Com.  Com.  (Lumber  Cases)   (       Fed.         ),  206. 
Union  Pac.  R.  Co.  v.  Oregon  &  "Washington  L.  M.  Asso.   (165 

Fed.  13),  200,  254,  572. 
Union  Pac.  R.  Co.  v.  United  States  (Sinking  Fund  Cases),  (99 

U.  S.  9  Otto.  700,  25  L.  Ed.  496),  3. 
Union  Pac.  R.  Co.  v.  United  States  (117  U.  S.  355,  29  L.  Ed. 

920,  6  Sup.  Ct.  772),  508,  534. 
Union  Sewer  Pipe  Co.  v.  Connelly"  (99  Fed.  354,  2  Fed.  Anti- 
Trust  Dec.  1),  600. 
United  States  v.  Addyston  Pipe  &  Steel  Co.  (78  Fed.  712,  1  Fed. 

Anti-Trust  Dec.  631),  603. 
United  States  v.  Addyston  Pipe  &  Steel  Co.  (85  Fed.  271,  29  C. 

C.  A.  141,  46  L.  R.  A.  122,  1  Fed.  Anti-Trust  Dec.  772), 

600,  603,  605. 
United  States  v.  Agler  (62  Fed.  824,  1  Fed.  Anti-Trust  Dec. 

294),  603. 
United  States  v.  American  Tobacco  Co.  (164  Fed.  700),  600. 
United  States  v.  Armour  (142  Fed.  808,  2  Fed.  Anti-Trust  Dec. 

951),  600. 
United  States  v.  Atchison,  T.  &  S.  F.  Ry.  Co.   (142  Fed.  176, 

2  Fed.  Anti-Trust  Dec.  831),  580,  603. 
Tmited  States  v.  Atchison,  T.  &  S.  F.  Ry.  Co.   (163  Fed.  Ill), 

522. 
United  States  v.  Atchison,  T.  &  S.  F.  R.  Co.   (166  Fed.  160), 

592. 
United  States  v.  Atlantic  C.  L.  R.  Co.  (153  Fed.  918),  403. 
L^nited  States  v.  Baltimore  &  0.  R.  Co.    (153  Fed.  997),  522, 

529. 
United  States  v.  Baltimore  &  0.  R.  Co.    (154  Fed.  108),  509, 

574. 
United  States  v.  Baltimore  &  0.  R.  Co.  (165  Fed.  113,        C.  C. 

A.        ),87,  509,  510,  574. 


68  Taulk  of  Cases  Cited. 

(Reforeneos  are  to  SectioTis.) 

United  States  ex  rel.  Pilcairn  Coal  Co.  v.  Baltimore  &  0.  R.  Co. 

(165  Fed.  113),  574. 
United  States  v.  Baltimore  &  0.  S.  AA'.  R.  Co.  (159  Fed.  33,  86 

C.  C.  A.  223),4()1,  5!)2. 
United  States  v.  Boston  &  A.  R.  Co.  (15  Fed.  209),  590,  592. 
United  States  v.  Bunch  (166  Fed.  736),  522. 
United  States  v.  Camden  Iron  AVorks  (150  Fed.  214),  522. 
United  States  v.  Cassidy  (67  Fed.  6i)8,  1  Fed.  Anti-Trust  Dec. 

449),  600. 
United  States  v.  Chesapeake  &  Ohio  Fuel  Co.   (105  Fed.  93,  2 

Fed.  Anti-Trust  Dec.  34),  600. 
United  States  v.  Chicago  &  Alton  R.  Co.  (148  Fed.  646),  513. 
United  States  v.  Chicago  &  N.  AV.  Ry.  Co.   (127  Fed.  785,  62 

C.  C.  A.  465),  508. 
United  States  v.  Chicago  etc.  Ry.  Co.  (163  Fed.  114),  505,  571, 

580. 
United  States  v.  Chicago,  K.  &  S.  R.  Co.   (81  Fed.  783),  500, 

563. 
United  States  v.  Chicago,  St.  P.,  AI.  &  0.  R.  Co.  (151  Fed.  84), 

513,  522,  577. 
United  States  v.  Coal  Dealers'  Asso.  (85  Fed.  252,  1  Fed.  Anti- 
Trust  Dee.  749),  600,  603. 
United  States  v.  Colorado  &  N.  AV.  R.  Co.  (157  Fed.  321,  85  C. 

C.  A.  27),  7,  500,  563. 
United  States  v.  Debs   (64  Fed.  724,  1  Fed.  Anti-Trust  Dec. 

322),  600. 
United  States  v.  DeCoursey  (82  Fed.  302),  513,  529. 
United  States  v.  Delaware  &  Hudson  Co.  (164  Fed.  215),  506. 
United  States  v.  Delaware  &  Hudson  Co.  (213  U.  S.  366,  53  L. 

Ed.        ),  29  Sup.  Ct.  527),  3,  93,  506. 
United  States  v.  Delaware,  L.  &  AV.  R.  Co.  (40  Fed.  101),  508, 

509. 
United  States  v.  Delaware,  L.  &  AA'.  R.  Co.  (152  Fed.  269),  500, 

522,  577. 
United  States  v.  Eagan  (47  Fed.  112),  508. 
United  States  v.  East  Tenn.,  A^a.  &  Ga.  Ry.  Co.  (13  Fed.  642), 

590. 
United  States  v.  Elliott   (62  Fed.  801,  1  Fed.  Anti-Trust  Dec. 

262),  600. 
United  States  v.  Elliott   (64  Fed.  27,  1  Fed.  Anti-Trust  Dec. 

311),  600,  603,  604. 


Table  of  Cases  Cited.  69 

(Eeferences  are  to  Sections.) 

United  States  v.  Fowkes  (53  Fed.  13,  3  C.  C.  A.  394),  529. 
United  States  v.  Geddes  (131  Fed.  452,  65  C.  C.  A.  320),  500. 
United  States  v.  Great  Nor.  R.  Co.  (151  Fed.  84),  577. 
United  States  v.  Great  Nor.  R.  Co.  (157  Fed.  288),  3,  522,  577. 
United  States  v.  Greenhnt  (50  Fed.  469,  1  Fed.  Anti-Trust  Dec. 

30),  601. 
United  States  v.  Hanley  (71  Fed.  672),  508,  529,  531,  532. 
United  States  v.  Harris  (85  Fed.  533),  590. 
United  States  v.  Harris  (177  U.  S.  305,  44  L.  Ed.  780,  20  Sup. 

Ct.  609),  590. 
United  States  v.  Hopkins  (82  Fed.  529,  1  Fed.  Anti-Trust  Dec. 

725),  600. 
United  States  v.  Howell  (56  Fed.  21),  529,  531. 
United  States  v.  Jellico  ^Mountain  Coal  &  Coke  Co.  (43  Fed.  898, 

1  Fed.  Anti-Trust  Dec.  1),  603. 
United  States  v.  Jellico  Mountain  Coal  &  Coke  Co.  (46  Fed.  432, 

12  L.  R.  A.  753,  1  Fed.  Anti-Trust  Dec.  9),  600. 
United  States  v.  Joint  Traffic  Asso.  (76  Fed.  895,  1  Fed.  Anti- 
Trust  Dec.  615),  512,  534,  603. 
United  States  v.  Joint  Traffic  Asso.  (89  Fed.  1020,  32  C.  C.  A. 

491,  45  U.  S.  App.  726,  1  Fed.  Anti-Trust  Dec.  869),  512, 

534,  603. 
United  States  v.  Joint  Traffic  Asso.    (171  U.  S.  505,  19  Sup. 

Ct.  25,  43  L.  Ed.  259,  1  Fed.  Anti-Trust  Dec.  869),  55, 

402,  512,  603. 
United  States  v.  Ju  Toy  (]98  U.  S.  253,  25  Sup.  Ct.  644,  49  L. 

Ed.  1040),  3. 
United  States  v.  Knight  &  Co.  (60  Fed.  306,  1  Fed.  Anti-Trust 

Dec.  250),  600. 
United  States  v.  Knight  &  Co.  (60  Fed.  934,  9  C.  C.  A.  297,  24 

L.  R.  A.  428,  1  Fed.  Anti-Trust  Dec.  258),  600. 
United  States  v.  Knight  &  Co.  (156  U.  S.  1,  11,  39  L.  Ed.  325, 

15  Sup.  Ct.  249,  1  Fed.  Anti-Trust  Dec.  379,  387),  600. 
United  States  v.  Lake  Shore  &  M.  S.  Ry.  Co.  (197  U.  S.  536,  49 

L.  Ed.  870,  25  Sup.  Ct.  538),  563,  567,  570,  574. 
United  States  v.  Lehigh  Valley  R.  Co.  (115  Fed.  373),  500. 
United  States  v.  Louisville  &  N.  R.  Co.  (18  Fed.  480),  590. 
T'nited  States  v.  Louisville  &  N.  R.  Co.  (157  Fed.  979),  590. 
United  States  v.  MacAndrews  &  Forbes  Co.  (149  Fed.  823,  836), 

607. 


70  Table  op  Cases  Cited. 

(References  are  to  Sections.) 

United  States  v.  Mathews  (68  Fed.  880),  508. 

United  States  v.  Mellen  (53  Fed.  229),  511,  529. 

United  States  v.  Michigan  Cent.  R.  Co.  (43  Fed.  26),  522,  529. 

United  States  v.  Michigan  Cent.  R.  C^o.  (122  Fed.  544),  4,  580, 

583. 
United  States  v.  Malwaukee  Rfgr.  Transit  Co.  (142  Fed.  247), 

521. 
United  States  v.  Milwaukee  Rfgr.  Transit  Co.  (145  Fed.  1007), 

580. 
United  States  v.  I\Tissoiiri  Pac.  Ry.  Co.  (65  Fed.  903,  5  I.  C.  R. 

106),  534,  580. 
United  States  v.  Mooney  (116  U.  S.  ]04,  29  L.  Ed.  550,  6  Sup. 

Ct.  304),  271. 
United  States  v.  Morsman  (42  Fed.  448),  500. 
United  States  v.  Moseley  (187  U.  S.  322,  47  L.  Ed.  198,  23  Sup. 

Ct.  90),  561. 
United  States  v.  Nelson   (52  Fed.  646,  1  Fed.  Anti-Trust  Dec. 

77),  601. 
United  States  v.  New  York  C.  &  II.  R.  R.  Co.  (140  Fed.  298), 

521. 
United  States  v.  New  York  C.  &  II.  R.  R.  Co.  (153  Fed.  630), 

500,  519,  522,  577. 
United  States  v.  New  York  C.  &  H.  R.  R.  Co.  (157  Fed.  293), 

522. 
United  States  v.  New  York  C.  &  H.  R.  R.  Co.  (164  Fed.  324), 

522. 
United  States  v.  New  York  C.  &  H.  R.  R.  Co.    (168  Fed.  699, 

CCA.        ),  401,  592. 
United  States  v.  New  York  C  &  H.  R.  R.  Co.   (212  U.  S.  481, 

53  L.  Ed.        ,  29  Sup.  Ct.  304),  500. 
United  States  v.  N.  Y.  C  &  H.  R.  R.  Co.  (212  U.  S.  509,  53  L. 

Ed.         ,  29  Sup.         ),  153. 
United  States  v.  Norfolk  &  Western  Ry.  Co.    (109  Fed.  831), 

574. 
United  States  v.  Norfolk  &  Western  Ry.  Co.    (114  Fed.  682), 

574. 
United  States  v.  Norfolk  &  AVestern  Ry.  Co.    (138  Fed.  849), 

574. 
United  States  v.  Norfolk  &  Western  Ry.  Co.  (143  Fed.  266,  74 

C  C  A.  404),  509,574. 


Table  of  Cases  Cited.  71 

(Eeferences  are  to  Sections.) 

United  States  v.  Northern  Securities  Co.  (120  Fed.  721,  2  Fed. 

Anti-Trust  Dee.  215),  600. 
United  States  v.  Oregon  R.  &  Nav.  Co.  (159  Fed.  975),  509. 
United  States  v.  Oregon  R.  &  Nav.  Co.  (163  Fed.  640),  590. 
United  States  v.  Oregon  R.  &  Nav.  Co.  (163  Fed.  642),  401. 
United  States  v.  Oregon  S.  L.  R.  Co.  (160  Fed.  526),  401,  590, 

592. 
United  States  v.  Patterson  (55  Fed.  605,  640,  641,  1  Fed.  Anti- 
Trust  Dee.  133,  176,  177),  601. 
United  States  v.  Patterson  (59  Fed.  280,  1  Fed.  Anti-Trust  Dec. 

244),  601. 
United  States  v.  Pomeroy  (152  Fed.  279),  522. 
United  States  v.  St.  Louis  &  S.  F.  Ry.  Co.  (107  Fed.  870),  592. 
United  States  v.  Seaboard  Ry.  Co.  (82  Fed.  563),  500,  563. 
United  States  v.  ex  rel.  Int.  Com.  Com.  v.  Seaboard  Ry.  Co.  (85 

Fed.  955),  563. 
United  States  v.  Sioux  City  Stock  Yards  Co.    (162  Fed.  556), 

401,  500,  502,  590. 
United  States  v.  Southern  Pac.  Co.  (157  Fed.  459),  590. 
United  States  v.  Southern  Pac.  Co.  (162  Fed.  412),  590. 
United  States  v.  Standard  Oil  Co.  (148  Fed.  719),  522,  577,  578. 
United  States  v.  Standard  Oil  Co.  (152  Fed.  290),  271,  604. 
United  States  v.  Standard  Oil  Co.  (155  Fed.  305),  500,  519,  522, 

577. 
United  States  v.  Stearns  Salt  &  Lumber  Co.    (165  Fed.  735), 

522. 
United  States  v.  Swift  &  Co.  (122  Fed.  529,  2  Fed.  Anti-Trust 

Dec.  237),  585. 
United  States  v.  Tozer  (37  Fed.  635,  2  L.  R.  A.  444),  509,  529. 
United  States  v.  Tozer  (39  Fed.  369),  509,  529. 
United  States  v.  Tozer  (39  Fed.  904),  509. 
United  States  v.  Trans-Missouri  Freight  Asso.   (53  Fed.  440,  1 

Fed.  Anti-Trust  Dec.  80),  512,  600. 
United  States  v.  Trans-Missouri  Freight  Asso.    (58  Fed.  58,  7 

C.  C.  A.  15,  97,  24  L.  R.  A.  73,  1  Fed.  Anti-Trust  Dec. 

186),  512. 
United  States  v.  Trans-Missouri  Freight  Asso.   (166  U.  S.  290, 

41  L.  Ed.  1007,  17  Sup.  Ct.  540,  1  Fed.  Anti-Trust  Dec. 

648),  55,402,  512,  600. 


72  Table  of  Cases  Cited. 

(EeforoTieos  are  to  Scftions.) 

United  States  v.  Union  Pac.  R.  Co.   (1G9  Fed.  65,         C.  C.  A. 

),  401,  590. 
United  States  v.  Union  Pac.  R.  Co.   (160  U.  S.  1,  16  Sup.  Ct. 

190,  40  L.  Ed.  319),  250. 
United  States  v.  Union  Stock  Yards  of  Omaha  (161  Fed.  919), 

500. 
United  States  v.  Vacuum  Oil  Co.  (153  Fed.  598),  513,  522. 
United  States  v.  Vacuum  Oil  Co.  (158  Fed."  536),  519,  522. 
United  States  v.  Virginia-Carolina  Chemical  Co.  (163  Fed.  66), 

604. 
United  States  v.  Wells  Fargo  Express  Co.    (161  Fed.  606),  5, 

500,  505,  508,  509,  522,  571. 
United  States  v.  West  Va.  N.  R.  Co.  (125  Fed.  252),  574. 
United  States  v.  Wood  (145  Fed.  405),  7,  500,  513,  522. 
United  States  v.  AVorkingman's  Amalg.  Council   (54  Fed.  994, 

26  L.  R.  A.  158,  1  Fed.  Anti-Trust  Dec.  110),  600,  603. 
United  States  Consolidated  Seeded  Raisin  Co.  v.  Griffin    (126 

Fed.  364,  61  C.  C.  A.  334,  2  Fed.  Anti-Trust  Dec.  288), 

600. 
United  States  Tobacco  Co.  v.  American  Tobacco  Co.   (163  Fed. 

701),  600. 

V. 

Van  Patten  v.  Chicago,  M.  &  St.  P.  R.  Co.  (74  Fed.  981),  200, 

271,  528. 
Van  Patten  v.  Chicago,  M.  &  St.  P.  R.  Co.  (81  Fed.  545),  504, 

528. 
Venus  V.  St.  Louis,  I.  M.  &  S.  R.  Co.  (15  I.  C.  C.  R.  136),  159, 

528,  547. 
Victor  Fuel  Co.  v.  Atchison,  T.  &  S.  F.  Ry.  Co.  (14  I.  C.  C.  R. 

119),  513. 
Village  of  Goodhue  v.  Chicago  G.  W.  Ry.  Co.   (11  I.  C.  C.  R. 

683),  509,  511. 
Virginia  Rate  Case  (211  U.  S.  210,  53  L.  Ed.         ,  29  Sup.  Ct. 

67),  3,  204. 

W. 

Wabash,  St.  L.  &  P.  R.  Co.  v.  Illinois  (118  U.  S.  557,  30  L.  Ed. 

244,  1  I.  C.  R.  31,  7  Sup.  Ct.  4),  206. 
Wabash  R.  Co.  v.  Sloop  (200  I\Io.  198,  98  S.  W.  607),  528. 
Warren  Mfg.  Co.  v.  Southern  Ry.  Co.  (12  I.  C.  C.  R.  381).  504, 
600. 


Table  of  Cases  Cited.  73 

(Eeferences  are  to  Sections.) 

Washer  Grain  Co.  v.  Missouri  Pac.  R.  Co.  (15  I.  C.  C.  R.  147), 

528,  532,  537,  538,  539,  545. 
Waterhouse  v.  Comer  (55  Fed.  149,  19  L.  R.  A.  403,  1  Fed.  Anti- 
Trust  Dec.  119),  529. 
Watson  V.  Sutherland  (5  Wall  74,  72  U.  S.  74,  18  L.  Ed.  580), 

251. 
Waxelbaum  v.  Atlantic  C.  L.  R.  Co.  (12  I.  C.  C.  R.  178),  509. 
Weems  Steamboat  Co.  v.  People's  Co.  (214  U.  S.  345,  53  L.  Ed. 

,  29  Sup.  Ct.        ),  80,  509. 
Weil  V.  Penn.  Co.  (11  I.  C.  C.  R.  627),  9],  509. 
Weisert  Bros.  Tobacco  Co.  v.  American  Tobacco  Co.   (163  Fed. 

712),  600. 
Weleetka  Light  &  Water  Co.  v.  Ft.  S.  &  W.  R.  Co.  (12  I.  C.  C. 

R.  503),  507. 
Wells,  Fargo  &  Co.  v.  Int.  Com.  Com.  (       Fed.         ) ,  206. 
Wells  Fargo  Ex.  Co.  v.  United  States  (212  U.  S.  522,  53  L.  Ed. 

,  29  Sup.  Ct.        ),509. 
Welton  V.  Missouri  (91  U.  S.  275,  23  L.  Ed.  347),  307. 
Western  Oregon  Lumber  Mfrs.'  Asso.  v.  Southern  Pac.  Co.  (14 

L  C.  C.  R.  61).  206. 
Western  New  York  &  P.  R.  Co.  v.  Penn  Refining  Co.  (137  Fed. 

343,  70  C.  C.  A.  23),  500,  528,  534,  545.  546. 
Western  Union  Tel.  Co.  v.  Baltimore  &  0.  R.  Co.    (Telegraph 

Case)   (      Fed.         ),  206. 
Western  Union  Tel.  Co.  v.  Call  Pub.  Co.   (181  U.  S.  92,  45  L. 

Ed.  765,  21  Sup.  Ct.  561).  1,  4.  67.  75,  504,  509,  528. 
Western  Union  Tel.  Co.  v.  Childs  (214  U.  S.  274,  53  L.  Ed. 

Sup.  Ct.        ) ,  200. 
Westinghouse  Air  Brake  Co.  v.  Great  N.  Ry.  Co.  (88  Fed.  258, 

31  C.  C.  A.  525),  271. 
West  Virginia  N.  R.  Co.  v.  United  States    (134  Fed.   198,  67 

C.  C.  A.  220),  574. 
Wheeler-Stenzel  Co.  v.  National  Window  Glass  Jobbers'  Asso. 

(152  Fed.  864,  81  C.  C.  A.  658),  606. 
White  V.  Mich.  Cent.  R.  Co.  (3  I.  C.  C.  R.  281,  2  I.  C.  R.  641), 

537. 
Whitewell  v.  Continental  Tobacco  Co.  (125  Fed.  454,  60  C.  C.  A. 

290,  64  L.  R.  A.   689,  2  Fed.  Anti-Trust  Dec.  271).  601, 

606. 
Wholesale  Fruit  and  Producers'  Asso.  v.  Atchison,  T.  &  S.  F. 

R.  Co.  (14  L  C.  C.  R.  410),  164,  539. 


74  Table  of  Cases  Cited. 

(Eeferences  are  to  Sections.) 

Wight  V.  United  States  (167  U.  S.  512,  42  L.  Ed.  258,  17  Sup. 

Ct.  822),  78,  508. 
Wilcox  V.  Consolidated  Gas  Co.   (212  U.  S.  19,  53  L.  Ed. 

29  Sup.  Ct.  392),  51,  206. 
Wilhoit  V.  Missouri,  K.  &  T.  Ry.  Co.  (12  I.  C.  C.  R.  138),  504. 
Wilmington  Tariff  Asso.  v.  Cincinnati,  Portsmouth  etc.  R.  Co. 

9  I.  C.  C.  R.  118),  509. 
Wilson  V.  Chicago,  M.  &  St.  P.  Ry.  Co.   (14  I.  C.  C.  R.  549), 

528. 
Wilson  V.  Rock  Creek  Ry.  Co.  (7  I.  C.  C.  R.  83),  500,  508. 
Winchester  &  Strasburg  R.  Co.  et  al.  v.  Commonwealth  (106  Va. 

264,  55  S.  E.  692),  3. 
Winona  &  St.  Paul  R.  Co.  v.  Blake  (94  U.  S.  180,  24  L.  Ed.  99), 

206. 
Winsor  Coal  Co.  v.  Chicago  &  A.  R.  Co.  (52  Fed.  716),  528. 
Wisconsin  Cent.  Ry.  Co.  v.  United  States  (169  Fed.  76,         C. 

C.  A.        ),  401,  590. 
Wisconsin  M.  &  P.  Co.  v.  Jacobson   (179  U.  S.  287,  45  L.  Ed. 

194,  21  Sup.  Ct.  115),  80,  304,  507. 
Wisewall,  The  Charles  E.  (74  Fed.  802,  1  Fed.  Anti-Trust  Dec. 

608),  600. 
Wisewall,  The  Charles  E.  (86  Fed.  671,  30  C.  C.  A.  339,  1  Fed. 

Anti-Trust  Dec.  850),  600. 
Wolverhampton  &  W.  R.  Co.  v.  London  &  N.  W.  Ry.  Co.  (43  L. 

J.  Ch.  131,  L.  R.  16,  Eq.  433),  252. 
Woodward  &  D.  v.  Louisville  &  N.  R.  Co.  (15  I.  C.  C.  R.  170), 

159,  528. 
Worcester  Excursion  Co.  v.  Penn.  R.  Co.  (3  I.  C.  C.  R.  577,  1  I. 

C.  R.  811,  2  I.  C.  R.  12,  792),  508. 
Workingman's  Amalg.  Council  v.  United  States  (57  Fed.  85,  6 

C.  C.  A.  258,  1  Fed.  Anti-Trust  Dec.  184),  603. 
Wrigley  v.  Cleveland  etc.  R.  Co.  (10  I.  C.  C.  R.  412),  508. 
Wylie  V.  Northern  Pac.  R.  Co.  (11  I.  C.  C.  R.  145),  500,  502. 

Y. 

York  Mfg.  Co.  v.  I.  C.  R.  Co.  (3  Wall  70  U.  S.  107,  18  L.  Ed. 

170),  201. 
Yoimg.  Ex  parte   (209  U.  S.  123,  52  L.  Ed.  714,  28  Sup.  Ct. 

441),  3. 


SHIPPERS  AND  CARRIERS  OF 
INTERSTATE  FREIGHT. 


CHAPTER  I. 


VALIDITY  AND   SCOPE   OF   THE   ACT   TO  REGULATE 

COMMERCE. 

§  1.  Common  law   obligations   of  common   carriers. 

2.  Power  of  Congress  over  interstate  commerce. 

3.  Constitutionality  of  the  act  to  regulate  commerce. 

4.  Eeasons  for  the  act  to  regulate  commerce. 

5.  Carriers  included  in  the  act. 

6.  Carriers  duties  under  the  act. 

7.  What  transportation  included  in  the  act. 

8.  Powers  and  procedure  of  the  Commission. 

9.  Court  procedure  with  reference  to  the  orders  of  the  Commission. 

§  1.  Common  law  obligations  of  common  carriers. — The  duty 
of  a  common  carrier  to  transport  at  reasonable  rates  existed  at 
common  law.^  This  was  and  is  true  because  the  business  of  car- 
riage for  the  public  is  one  of  a  quasi  public  nature  and  the 
charges  therefor  are  subject  to  regulation  by  the  public.  In 
Texas  &  Pac.  Ry.  Co.  v.  Abilene  Cotton  Oil  Co.,  204  U.  S.  426, 
51  L.  Ed.  553,  27  Sup.  Ct.  350,  the  court  says : 

"Without  going  into  detail,  it  may  not  be  doubted  that  at 
common  law,  where  a  carrier  refused  to  receive  goods  offered 
for  carriage  except  upon  the  payment  of  an  unreasonable  sum, 
the  shipper  had  a  right  of  action  in  damages.  It  is  also  beyond 
controversy  that  when  a  carrier  accepted  goods  without  payment 
of  the  cost  of  carriage  or  an  agreement  as  to  the  price  to  be  paid, 
and  made  an  unreasonable  exaction  as  a  condition  of  the  de- 
livery of  the  goods,  an  action  could  be  maintained  to  recover  the 
excess  over  a  reasonable  charge.  And  it  may  further  be  con- 
ceded that  it  is  now  settled  that  even  where,  on  the  receipt  of 

^  Tift  V.  So.  By.  Co.,  123  Fed.  789. 

75 


76  Validity  and  Scope  of  the  [§  2. 

goods  by  a  carrier,  an  exhorbitant  charge  is  stated,  and  the  same 
is  coercively  exacted  either  in  advance  or  at  the  completion  of 
the  service,  an  action  maj^  be  maintained  to  recover  the  over- 
charge. 2  Kent.  Comm.  599.  and  note  A ;  2  Smith  Lead.  Cas., 
pt.  1,  8th  Ed.,  Hare  &  Wallace  Notes,  p.  457." 

Unjnst  discrimination  was  also  illegal  at  common  law.  The 
Supreme  Court  has  approved  a  charge  substantially  to  the  ef- 
fect that  not  every  discrimination  in  rates  charged  is  unjust,  and 
that  in  order  to  constitute  an  unjust  discrimination,  there  must 
be  a  difference  in  rates  under  substantially  similar  conditions  as 
to  service.  All  rates  must  be  reasonable ;  and,  under  like  condi- 
tions, all  patrons  must  be  served  on  equal  terms.  While  there  is 
no  body  of  Federal  common  law  separate  and  distinct  from  the 
common  law  existing  in  the  several  states,  the  principles  of  the 
common  law  are  operative  upon  all  interstate  commercial  trans- 
actions, except  so  far  as  they  are  modified  by  congressional 
enactment.' 

§  2.  Power  of  Congress  over  interstate  commerce. — Paragraph 
3,  Section  8,  Article  1,  of  the  Constitution  of  the  United  States 
contains  the  grant  of  power  to  Congress  over  interstate  com- 
merce and  gives  Congress  the  power  "to  regulate  commerce  with 
foreign  nations,  among  the  several  states,  and  with  the  Indian 
tribes. ' ' 

The  general  subject  of  interstate  commerce  has  been  ably 
treated  by  others,  and  the  scope  of  this  work  does  not  include 
such  discussion.  The  purpose  of  this  work  is  to  treat  of  the 
rights  and  duties  of  shippers  and  carriers  of  freight  that  comes 
within  the  description  of  interstate  commerce.  The  general  sub- 
ject of  commerce  is  well  treated  in  the  numerous  works  on  the 
Constitution  of  the  United  States,  and  especially-  in  Judson  on 
Interstate  Commerce,  and  Regulation  of  Commerce,  by  Calvert. 

That  the  power  to  regulate  interstate  commerce  is  complete 
in  Congress  has  never  been  doubted.  IMr.  Chief  Justice  Marshal 
stated  this  power  in  language  that  has  frequently  been  cited  with 
approval.     He  said:' 

''We  are  now^  arrived  at  the  inquiry.  What  is  this  power.  It 
is  the  power  to  regulate ;  that  is  to  prescribe  the  rule  by  which 

==  Western   Umon   Tel.   Co.   v.   Call  6    L.    Ed.    23,    70;    Howard    v.    111. 

Pub.   Co.,   181   V.  S.  92,   4.5  L.   Ed.  Cont.    E.    Co.,    207    U.    S.    46.3,    492, 

765,  21  Sup.  Ct.  561.  493,    52    L.    Ed.    297,    307,    28    Sup. 

« Gibbons   v.    Ogden,    9    Wheat    1,  Ct.  141. 


§  3.]  Act  to  Regulate  Commerce.  77 

commerce  is  to  be  governed.  This  power,  like  all  others  vested 
in  Congress,  is  complete  in  itself,  may  be  exercised  to  its  utmost 
extent,  and  aclcnowledges  no  limitations  other  than  are  pre- 
scribed in  the  constitution.  *****  If,  as  has  always  been 
undersood,  the  sovereignty  of  Congress,  though  limited  to  spe- 
cified objects,  is  plenary  as  to  those  objects,  the  power  over  com- 
merce with  foreign  nations  and  among  the  several  states  is 
vested  in  Congress  as  absolutely  as  it  would  be  in  a  single  gov- 
ernment, having  in  its  constitution  the  same  restrictions  on  the 
exercise  of  the  power  as  are  foiuid  in  the  Constitution  of  the 
United  States." 

§  3.  Constitutionality  of  the  act  to  regulate  commerce. — The 
constitutional  grant  of  power  to  regulate  commerce  with  for- 
eign countries  and  between  the  states  is  plenary.  The  necessity 
for  this  grant  was,  as  is  well  known,  one  of  the  principal  reasons 
for  dissatisfaction  with  the  confederacy  existing  prior  to  the 
adoption  of  our  constitution.  Just  what  powers  could  be  con- 
stitutionally delegated  or  given  to  the  commission  was  the  ques- 
tion to  be  determined  by  the  framers  of  the  acts  to  regulate  com- 
merce. It  has  been  held  that  to  prescribe  rates  for  the  future 
is  a  legislative  power,  to  determine  whether  or  not  a  rate  is 
reasonable  is  a  judicial  question.*  The  legislature  of  a  state  may 
directly  prescribe  maximum  rates,  or  such  power  may  be  dele- 
gated to  a  commission.'^  Prior  to  the  amendment  known  as  the 
Hepburn  Act  the  Interstate  Commerce  Commission  was  a  mere 
administrative  body,  with  no  power  to  fix  rates.  It  could  make 
findings  and  declare  a  particular  rate  unreasonable,  these  find- 
ings were  prima  facie  true  and  were  entitled  to  the  ' '  strength  due 
to  the  judgment  of  a  tribunal  appointed  by  law  and  informed 
by  experience.'"'  The  original  act  was  by  the  Supreme  Court' 
held  to  be  valid.^    The  court  in  the  course  of  the  opinion  said : 

"Interpreting  the  Interstate  Commerce  Act  as  applicable,  and 
as  intended  to  apply,  only  to  matters  involved  in  the  regulation 

*  Chicago,  M.  &  St.  P.   E.  Co.  v.  70   Ga.   694,   128   U.    S.   174,  32   L. 

Minnesota,    134    U.    S.    418,    33    L.  p:(l.  377,  9  Sup.  Ct.  47. 

Ed.  970,  10  Sup.  Ct.  462,  702.  « 111.    Cent.    R.    Co.    v.    Int.    Com. 

=  Munn    V.    Illinois,    94    U.    S.,    4  Com.,  206  U.  S.  441,  454,  51  L.  Ed. 

Otto.   113,   24   L.   E<1.   77;    Stone  v.  1128,  1134,  27  Snp.  Ct.  700. 

Farmers'    L.    &    T.    Co.,    116   U.    S.  ^  Int.  Com.  Com.  v.  Brimson,  1.54' 

307,  29  L.  Ed.  636,  6  Sup.  Ct.  334,  U.  S.  447,  38  L.  Ed.  1047,  14  Sup. 

1191;  Georgia  R.  &  B.  Co.  v.  Smith,  Ct.  1125. 


78  Validity  and  Scope  op  the  [§  3. 

of  commerce,  and  which  Congress  may  rightfully  subject  to  in- 
vestigation by  a  commission  established  for  the  purpose  of  en- 
forcing that  act,  Ave  are  unable  to  say  that  its  provisions  are  not 
appropriate  and  plainly  adapted  to  the  protection  oE  interstate 
commerce  from  burdens  that  are  or  may  be,  directly  or  indi- 
rectly, imposed  upon  it  by  means  of  unjust  and  unreasonable 
discriminations,  charges,  and  preferences.  Congress  is  not  lim- 
ited in  its  employment  of  means  to  those  that  are  absolutely  es- 
sential to  the  accomplishment  of  objects  within  the  scope  of  the 
powers  granted  to  it.  It  is  a  settled  principle  of  constitutional 
law  that  'the  government  which  has  a  right  to  do  an  act,  and  has 
imposed  on  it  the  duty  of  performing  that  act.  must,  according 
to  the  dictates  of  reason,  be  allowed  to  select  the  means;  and 
those  who  contend  that  it  may  not  select  any  appropriate  means, 
that  one  particular  mode  of  effecting  the  object  is  excepted,  take 
upon  themselves  the  burden  of  establishing  that  exception.' 
McCulloch  V.  Maryland,  17  U.  S.  4  Wheat.  316,  (4  L.  Ed. 
579,  602).  The  test  of  the  power  of  Congress  is  not  the  judg- 
ment of  the  courts  that  particular  means  are  not  the  best  that 
could  have  been  employed  to  effect  the  end  contemplated  by  the 
legislative  department.  The  judiciary  can  only  inquire  whether 
the  means  devised  in  the  execution  of  a  power  granted  are  for- 
bidden by  the  constitution.  It  cannot  go  bej^ond  that  inquiry 
without  entrenching  upon  the  domain  of  another  department 
of  government.  That  it  may  not  do  with  safety  to  our  institu- 
ions.  Union  Pac.  R.  Co.  v.  United  States  (''Sinking  Fund 
Cases")  99  U.  S.  700,  718  (25  L.  Ed.  496,  501)." 

In  United  States  v.  Delaware  &  Hudson  Co.,  213  U.  S.  366, 
53  L.   Ed.  Sup.   Ct.  it  was   contended  that  the   so- 

called  commodity  clause  of  section  one  of  the  present  act  was 
unconstitutional,  one  of  the  grounds  for  such  contention  being 
that  the  penalties  prescribed  by  the  amended  act  brought  it 
within  the  decision  of  the  Supreme  Court  in  Ex  parte  Young, 
209  U.  S.  123,  52  L.  Ed.  714,  28  Sup.  Ct.  441.  The  clause  as 
construed  by  the  Supreme  Court,  was  held  valid.  On  the  ques- 
tion of  the  effect  of  the  penalties,  at  page  417  of  the  opinion, 
the  court  said : 

"With  reference  to  the  contention  that  the  commodities  clause 
is  void  because  of  the  nature  and  character  of  the  penalties 
which  it  imposes  for  violations  of  its  provisions,  within  the 
ruling  in  Ex  parte  Young,  209  U.  S.  123,  we  think  it  also  suf- 


§  3.]  Act  to  Regulate  Commerce.  79 

fices  to  say  that  even  if  the  delay  which  the  clause  provided 
should  elapse  between  its  enactment  and  the  going  into  effect 
of  the  same  does  not  absolutely  exclude  the  clause  from  the  rul- 
ing in  Ex  parte  Young,  a  question  which  we  do  not  feel  called 
upon  to  decide,  nevertheless  the  proposition  is  without  merit, 
because,  (a)  no  penalties  are  sought  to  be  recovered  in  these 
cases,  and,  (b)  the  question  of  the  constitutionality  of  the  clause 
relating  to  penalties  is  wholly  separate  from  the  remainder  of 
the  clause,  and,  therefore,  may  be  left  to  be  determined  should 
an  effort  to  enforce  such  penalties  be  made." 

In  speaking  of  the  question  of  the  constitutionality  of  the 
Elldns  Act,  District  Judge  Hough  said :  * 

"  I  do  not  apprehend  that  the  constitutionality  of  the  original 
interstate  commerce  act  is  at  this  late  day  sought  to  be  attacked. 
But  it  is  suggested  that,  inasmuch  as  by  recent  rulings  the  ship- 
per's common-law  right  to  enforce  by  appropriate  legal  pro- 
ceedings a  reasonable  rate  of  carriage  is  said  to  be  taken  away, 
so  that  not  only  the  regulation  of  carriers,  but  of  shippers  is 
now  vested  in  a  commission,  it  therefore  follows  that  the  present 
statutes,  as  thus  interpreted,  constitute  a  deprivaion  of  prop- 
eiy  rights  without  due  process  of  law.  The  subject  is  an  in- 
teresting one,  and  will  doubtless  receive  due  consideration  when 
the  regulation  of  commercial  transactions  by  commissioners  and 
boards  appointed  by  executive  authority  shall  have  more  nearly 
approached  a  system  than  is  now  the  case.  It  seems  to  me  suffi- 
cient for  the  present  argument  that  property  rights,  however 
dear,  are  not  to  be  ranked  higher  than  those  of  citizenship  and 
personal  liberty,  and  it  is  now  held  that  officers  appointed  by 
the  executive,  and  boards  created  by  that  authority,  answering 
directly  to  the  executive  only,  may  pass  upon  the  status  of  one 
who  alleges  himself  to  be  a  native-born  citizen  of  the  United 
States,  and,  by  finding  adversely  to  his  assertion  the  place  of 
his  birth,  debar  him  from  the  only  country  that  he  swears  he 
ever  knew,  and  this  without  any  recourse  to  the  courts  of  his 
alleged  native  land,  unless  there  be  found  in  the  proceedings  of 
the  executive  malice  or  abuse  of  discretion.  U.  S.  v.  JuToy, 
]98  U.  S.  253,  25  Sup.  Ct.  644,  49  L.  Ed.  1040.  I  think  that  the 
deprivation  here  alleged  is  very  far  within  the  executive  power 
recognized  by  the  case  last  cited." 

"United  States  v.  Great  N.  R.  Co.,  157  Fed.  288,  291. 


80  Validity  and  Scope  of  the  [§  3. 

It  will  be  seen  that  the  validity  of  the  provision  granting  the 
power  to  the  commission  to  prescribe  rates  for  the  future  has 
not  yet  been  passed  upon. 

Some  of  the  reasons  discussed  by  the  Supreme  Court  in  the 
Brimson  case  supra  apply  cogently  in  support  of  the  contention 
that  power  might  be  granted  to  the  commission  to  fix  rates  appli- 
cable to  the  future.  The  language  of  Judge  Hough  supra  seems 
to  misconstrue  the  act.  "The  shipper's  common  law  right  to 
enforce  by  appropriate  legal  proceedings  a  reasonable  rate  of 
carriage"  is  not  taken  away.  A  method  for  the  preliminary 
determination  of  what  constitutes  a  reasonable  rate  is  prescribed. 
In  making  this  preliminary  determination  the  commission  acts 
with  powers  similar  to  those  of  a  sj^ecial  master  or  referee."  This 
provision  is  accepted  as  legal  and  enforced  by  the  Supreme 
Court  in  Texas  &  Pac.  R.  Co.  v.  Abilene  Cotton  Oil  Co.,  204 
U.  S.  426,  51  L.  Ed.  553,  27  Sup.  Ct.  350.  The  order  determin- 
ing what  is  a  reasonable  existing  rate  is  only  prima  facie  correct. 
The  shippers  right  to  enjoin  an  illegal  advance  has  not  been  de- 
termined to  have  been  taken  away  and  the  great  weight  of  au- 
thority is  to  the  effect  that  it  still  exists.^"  The  commission  exer- 
cises two  principal  functions:  (a)  To  declare  an  existing  rate 
unreasonable  and  award  reparation.  This  may  be  a  judicial 
function,  but  is  in  no  sense  an  exercise  of  judicial  power.  It  can 
not  enforce  its  orders,  nor  are  such  orders  binding  on  the  courts. 
The  courts  try  the  question  of  reparation  cle  novo  and  may  grant 
a  judgment  for  the  reparation  allowed  by  the  commission  or  not, 
as  may  to  the  court  seem  consonant  to  law  and  the  facts,  (b) 
To  prescribe  rates  for  the  future.     This  is  an  exercise  of  a  leg- 


» Kentucky  &  Ind.  B.  Co.  v.  Louis-  of  Ga.  E.  Co.,  158  Fed.  193 ;  Jewett 

ville  &  N.   R.   Co.,  37   Fed.   567,   2  v.  Chicago  etc.  R.  Co.,  156  Fed.  160; 

L.  R.  A.  289,  2  I.  C.  R.  351.  Macon    Grocery    Co.    v.    Atlantic    C. 

"Tift   V.    So.    Ry.    Co.,    123    Fed.  L.   R.  Co.,   163  Fed.   738;    Northern 

789,    138   Fed.    753,    159    Fed.   555;  Pac.  R.  Co.  v.  Pacific  Coast  Lumber 

So.  Ry.  Co.  V.  Tift,  148  Fed.   1021,  Mfg.  Asso.,  165  Fed.  1.     The  Macon 

206  U.   S.  428,  51  L.   Ed.   1124,  27  Grocery  case  supra  was  reversed  by 

Sup.    Ct.    709;    Chicago    etc.   R.   Co.  the   Circuit   Court  of  Appeals  furn- 

V.  Osborne,  52  Fed.  912,  3  C.  C.  A.  ishing     the     only     direct     authority 

347;   Coe  v.  L.  &  N.  R.  Co.,  3  Fed.  against    the    proposition.       Atlantic 

775;  Potlach  Lumber  Co.  v.  Spokane  C.    L.    v.    Macon    Grocery    Co.,    166 

Falls  &  N.  Ry.   Co.,  157  Fed.  588;  Fed.  206,  90  C.  C.  A.     An  appeal  ia 

Kalispell   Lumber    Co.   v.    Great    N.  pending  in  the  Supreme  Court, 
E.  Co.,  157  Fed.  845;  Kiser  v.  Cent. 


§  3.]  Act  to  Regulate  Commerce.  81 

islative  power.  But  why  can  not  Congress  select  means  and 
agencies  through  which  it  performs  its  legislative  powers?  It 
has  been  seen  that  state  legislatures  have  exercised,  through 
commissions,  the  power  to  fix  rates  for  the  future.  The  language 
of  Mr.  Justice  Harlan  quoted  supra  from  the  Brimson  case  would 
seem  to  answer  the  question  in  favor  of  the  constitutionality  of 
the  act.  The  Constitution,  Article  I,  section  1,  Article  II,  sec- 
tion 1,  and  Article  III,  section  1,  speaks  of  legislative,  executive 
and  judicial  powers.  These  powers  can  be  kept  in  separate 
hands,  but  when  a  legislator  hears  evidence  to  determine  what 
is  a  reasonable  tariff  on  a  particular  commodity,  he  hears  and 
determines  and,  to  some  extent,  exercises  a  judicial  function; 
but  as  he  only  makes  the  law  and  cannot  execute  it,  he  has  and 
exercises  no  judicial  power.  In  the  same  sense  the  commission 
hears  and  determines  but  does  not  and  can  not  execute.  The 
grant  of  full  power  over  interstate  and  foreign  commerce  gave 
to  Congress  the  right  to  adopt  all  necessary  means  and  agencies 
to  make  that  power  effective.  The  Supreme  Court  in  the  Vir- 
ginia Rate  Case,"  having  under  discussion  a  rate  fixed  by  the 
Corporation  Commission  of  Virginia,  made  some  interesting 
and  apt  observations  showing  the  distinction  between  legislative 
and  judicial  fimctions.    IMr.  Justice  Holmes  there  said : 

"We  shall  assume,  as  we  have  said,  that  some  of  the  powers 
of  the  commission  are  judicial,  and  we  shall  assume,  without  de- 
ciding, that,  if  it  was  proceeding  against  the  appellees  to  enforce 
this  order  and  to  punish  them  for  a  breach,  it  then  would  be  sit- 
ting as  a  court  and  would  be  protected  from  interference  on  the 
part  of  the  courts  of  the  United  States. 

"But  we  think  it  equally  plain  that  the  proceedings  drawn  in 
question  here  are  legislative  in  their  nature,  and  none  the  less 
so  that  they  have  taken  place  with  a  body  which  at  another  mo- 
ment, or  in  its  principal  or  dominant  aspect,  is  a  court  such  as 
is  meant  by  §  720.  A  judicial  inquiry  investigates,  declares  and 
enforces  liabilities  as  they  stand  on  present  or  past  facts  and 
under  laws  supposed  already  to  exist.  That  is  its  purpose  and 
end.  Legislation  on  the  other  hand  looks  to  the  future  and 
changes  existing  conditions  by  making  a  new  rule  to  be  applied 
thereafter  to  all  or  some  part  of  those  subject  to  its  power.  The 
establishment  of  a  rate  is  the  making  of  a  rule  for  the  future, 

"Prentis  v.  Atlantic  C.  L.  Co.,  211  U.  S.  210,  53  L.  Ed.  29  Sup. 
Ct.  67. 


82  Vaijditv  and  Scope  of  the  [§  3. 

and  therefore  is  an  act  legislative  not  judicial  in  kind,  as  seems 
to  be  fully  recognized  by  the  Supreme  Court  of  Appeals,  Com- 
monwealth of  Va.  V.  Atlantic  Coast  Line  Ry.  Co.,  106  Virginia 
61,  64,  55  S.  E.  572,  and  especially  by  its  learned  president  in  his 
pointed  remarks  in  Winchester  and  Strasburg  R.  R.  Co.  and 
others  v.  Comonmwealth,  106  Virginia  264,  281,  55  S.  E.  692. 
See  further  Interstate  Commerce  Commission  v.  Cincinnati, 
New  Orleans  &  Texas  Pacific  Ry.  Co.,  167  U.  S.  479,  499,  500, 
505,  42  L.  Ed.  243,  17  Sup.  Ct.  896;  San  Diego  Land  &  Town 
Co.  V.  Jasper,  189  U.  S.  439.  440,  47  L.  Ed.  892,  23  Sup.  Ct. 
571." 

In  Honolulu  R.  T.  Co.  v.  HaAvaii ''  the  Supreme  Court  said: 
"The  business  conducted  by  the  transit  company  is  not  purely 
private.  It  is  of  that  class  so  affected  by  a  public  interest  that 
it  is  subject,  within  constitutional  limits,  to  the  governmental 
power  of  regulation.  This  power  of  regulation  may  be  exercised 
to  control,  among  other  things,  the  time  of  the  running  of  cars. 
It  is  a  power  legislative  in  its  character  and  may  be  exercised 
directly  by  the  legislature  itself.  But  the  legislature  may  dele- 
gate to  an  administrative  body  the  execution  in  detail  of  the 
legislative  power  of  regulation.  Reagan  v.  Farmers'  Loan  & 
Trust  Co.,  154  U.  S.  362,  393,  394.  38  L.  Ed.  1014,  14  Sup.  Ct. 
1047 ;  Interstate  Commerce  Com.  v.  Cincinnati,  New  Orleans  & 
Texas  Pacific  Railway  Company,  167  U.  S.  479,  494,  42  L.  Ed. 
243,  17  Sup.  Ct.  896." 

What  effect  the  penalties  prescribed  in  the  act  may  have  on 
its  constitutionality  in  view  of  the  Young  Case  supra,  is  a  ques- 
tion that  the  act  itself  answers.  The  danger  of  incurring  ruin- 
ous penalties  pointed  out  in  the  Young  Ca.se  does  not  exist  in  the 
act  to  regulate  commerce.  In  this  act  the  rates  prescribed  by  the 
commission  become  effective  only  after  thirty  days'  notice,  dur- 
ing which  time  the  order  fixing  the  rates  may  "be  suspended 
or  set  aside  by  a  court  of  competent  jurisdiction,"  if  the  rate 
prescribed  be  illegal.  The  venue  of  suits  "to  enjoin,  set  aside, 
annul,  or  suspend  any  order  or  recjuirement  of  the  commission" 
is  fixed;  and  suits  "may  be  brought  at  any  time  after  such  order 
is  promulgated."  It  would  seem  that  the  carriers  have  full  op- 
portimity  to  test  an  order  before  feeling  compelled  b}^  the  possi- 
bility of  penalties  to  obey  it. 

''-  211  U.  S.  282,  53  L.  Ed.        ,29  "  §§    15,    16,    of    act    to    regulate 

Sup.   Ct.   55.  commerce.     See  Post  §§  539  to  550. 


§  4.]  Act  to  Regulate  Commerce.  83 

§  4.  Reasons  for  the  act  to  regulate  commerce. — Prior  to  the 
act  of  February  4,  1887/*  carriers  were  free  to  make  such  rates 
on  interstate  transportation  as  they  saw  fit,  subject  only  to  the 
power  of  the  courts  under  the  common  law,  at  the  suit  of  indi- 
viduals to  prevent  irreparable  damage  or  give  redress  for  un- 
reasonable or  im justly  discriminatory  rates." 

In  Tex.  &  Pac.  R.  Co.  v.  Interstate  Commerce  Commission," 
the  Supreme  Court,  speaking  of  this  act,  said: 

"It  may  be  well  to  advert  to  the  causes  which  induced  its 
enactment.  They  chiefly  grew  out  of  the  use  of  railroads  as  the 
principal  modern  instrumentality  of  commerce.  AVhile  shippers 
of  merchandise  are  under  no  legal  necessity  to  use  railroads, 
practically  they  are.  The  demand  for  speedy  and  prompt  move- 
ment virtually  forbids  the  employment  of  slow  and  old-fashioned 
methods  of  transportation,  at  least  in  the  case  of  the  more  valu- 
able articles  of  traffic.  At  the  same  time,  the  immense  outlay  of 
money  required  to  build  and  maintain  railroads,  and  the  neces- 
sity of  resorting,  in  securing  the  rights  of  way,  to  the  power  of 
eminent  domain,  in  effect  disable  individual  merchants  and 
shippers  from  themselves  providing  such  means  of  carriage. 
From  the  very  nature  of  the  case,  therefore,  railroads  are 
monopolies,  and  the  evils  that  usually  accompany  monopolies 
soon  began  to  show  themselves,  and  were  the  cause  of  loud  com- 
plaints. The  companies  owning  the  railroads  were  charged,  and 
sometimes  truthfully,  with  making  unjust  discriminations  be- 
tween shippers  and  localities,  with  making  secret  agreements 
with  some  to  the  detriment  of  other  patrons,  and  with  making 
pools  or  combinations  with  each  other,  leading  to  the  oppression 
of  entire  communities. 

"Some  of  these  mischiefs  were  partially  remedied  by  special 
provisions  inserted  in  the  charters  of  the  companies  and  by 
general  enactments  by  the  several  states,  such  as  clauses  restrict- 
ing the  rates  of  toll  and  forbidding  railroad  companies  from  be- 
coming concerned  in  the  sale  or  production  of  articles  carried 

'*  Chapter  Nine  Post.  92,  45  L.  Ed.  765,  21  Sup.  Ct.  561; 

^'Tex.    &   Pac.    E.    Co.   v.   Alilene  TTnitocl    States    v.    Mich.    Cent.    E. 

Cotton   Oil   Co.,   204   U.   S.   426,   51  Co.,  122  Fed.  544. 

L.  Ed.  553,  27   Sup.  Ct.   350 ;    Tift  '"  Tex.  &  Pac.  E.  Co.  v.  Int.  Com. 

V.   So.   Ey.   Co.,   123    Fed.   789,    138  Com.,   162   U.   S.   197,   210,   211,  40 

Fed.   753;    Western   Union   Tel.    Co.  L.   Ed.   940,   944,   945,    16   Sup.   Ct. 

V.    Call    Publishing    Co.,    181    U.    S.  666. 


84  Validity  and  Scope  of  the  [§  5. 

and  from  making  nnjust  preferences.  Relief,  to  some  extent, 
M^as  likewise  found  in  the  action  of  the  courts  in  enforcing  the 
principles  of  the  common  law  applicable  to  common  carriers — 
particularly  that  one  which  required  uniformity  of  treatment  in 
like  conditions  of  service. 

"As,  however,  the  powers  of  the  states  were  restricted  to  their 
OAvn  territories,  and  did  not  enable  them  to  efficiently  control  the 
management  of  great  corporations  whose  roads  extend  through 
the  entire  country,  there  was  a  general  demand  that  Congress, 
in  the  exercise  of  its  plenary  power  over  the  subject  of  foreign 
and  interstate  commerce,  should  deal  with  the  evils  complained 
of  by  a  general  enactment,  and  the  statute  in  question  was  the 
result. ' ' 

§  5.  Carriers  included  in  the  act. — The  original  act  applied 
only  to  transportation  wholly  by  railroad,  or  partly  by  railroad 
and  partly  by  water.  Bridges  and  ferries  used  or  operated  in 
connection  with  any  railroad,  and  also  all  the  road  in  use  by 
any  corporation  operating  a  railroad,  whether  owned  or  oper- 
ated under  a  contract,  agreement,  or  lease;  all  instrumentalities 
of  shipment  or  carriage.  The  present  act  extends  the  law  to 
apply  to  the  transportation  of  oil  or  other  commodities,  except 
water  and  gas,  by  means  of  pipe  lines  or  partly  by  pipe  lines  and 
partly  by  rail  or  water,  and  includes  express  companies;  all 
switches,  spurs,  tracks  and  terminal  facilities  of  every  kind  used 
or  necessary  in  the  transportation  of  the  persons  or  property  des- 
ignated therein,  and  also  all  freight  depots,  yards,  and  grounds 
used  or  necessary  in  the  transportation  or  delivery  of  any  of  said 
property;  cars  and  other  vehicles  and  all  instrumentalities  and 
facilities  of  shipment  or  carriage,  irrespective  of  ownership  or  of 
any  contract,  express  or  implied,  for  the  use  thereof,  and  all  ser- 
vices in  connection  with  the  receipt,  delivery,  elevation  and 
transfer  in  transit,  ventilation,  refrigeration  or  icing,  storage, 
and  handling  of  property  transported. 

Under  the  act,  foreign  carriers  engaged  in  transporting  be- 
tween points  within  and  points  without  the  United  States  are 
subject  to  the  regulations  prescribed ; "  water  carriers  are  sub- 
ject only  when  the  transportation  is  partly  by  rail  and  partly 
by  water,  when  both  are  used  under  a  common  contract,  man- 


"Ee  Investigation  of  Acts  Grand       Trunk  Ky.  of  Canada,  3  I.  C.  C.  E. 
89,  2  I.  C.  E.  496. 


§  6.]  Act  to  Regulate  Commerce.  85 

agement  or  arrangement  for  a  continuous  carriage  or  shipment." 
A  corporation  organized  to  construct  and  maintain  a  bridge 
across  a  river  that  rims  between  two  states  and  which  owns  no 
ears,  but  merely  furnishes  a  highway  over  which  common  car- 
riers and  others  may  transport  goods,  is  not  within  the  pro- 
visions of  the  act.''  Express  companies  are  now  in  terms  in- 
eluded. 

§  6.  Carriers  duties  under  the  act. — It  is  the  duty  of  ever}^ 
carrier  subject  to  the  provision  of  the  law  to  provide  and  fur- 
nish transportation  upon  reasonable  request  therefor,  and  to 
establish  through  routes  and  just  and  reasonable  rates  appli- 
cable thereto.  All  charges  for  any  service  must  be  just  and 
reasonable.  Railroads  are  prohibited  from  transporting  certain 
commodities  in  which  they  are  interested.  Switch  connections, 
under  certain  circumstances,  must  be  made  with  other  carriers 
and  with  shippers.  Rebates  and  other  forms  of  discrimination 
are  prohibited.  Undue  and  unreasonable  preferences  to  per- 
sons, places  or  particular  kinds  of  traffic  are  illegal ;  and,  under 
substantially  similar  circumstances  and  conditions,  no  greater 
charge  shall  be  made  for  a  shorter  than  a  longer  haul,  the 
shorter  being  included  in  the  longer.  Transportation  of  freight 
must  be  continuous,  pooling  is  prohibited,  and  rates  are  re- 
quired to  be  published,  posted  and  maintained."'  The  Supreme 
Court,  speaking  of  the  act,  has  said :  " 

"It  cannot  be  challenged  that  the  great  purpose  of  the  act 
to  regulate  commerce,  whilst  seeking  to  prevent  unjust  and  un- 
reasonable rates,  was  to  secure  equality  of  rates  to  all,  and  to  de- 
stroy favoritism,  these  last  being  accomplished  by  requiring  the 
publication  of  tariffs,  and  by  prohibiting  secret  departures  from 
such  tariffs,  and  forbidding  rebates,  preferences,  and  all  other 
forms  of  undue  discrimination.  To  this  extent  and  for  these 
purposes  the  statute  was  remedial  and  is,  therefore,  entitled  to 
receive  that  interpretation  which  reasonably  accomplishes  the 
great  public  purpose  which  it  was  enacted  to  subserve. ' ' 

"Post  §  500.  Companies  v.  United  States,  212  U. 

''  Kentucky  &  Indiana  Bridge  Co.  S.  522,  53  L.  Ed.         ,  29  Sup.  Ct. 
V.  Louisville  &  N.   E.   Co.,   37   Fed.  ^'Post  chapter  nine. 

567,  617,  2  L.  E.  A.  289,  2  I.  C.  E.  ■""-  New  York,  N.   II.  &   H.  E.   Co. 

351.  V.   Int.   Com.   Com.,   200   U.   S.   361, 

==»  United    States    v.    Wells    Fargo  391,    50   L.    Ed.    515,    521,    26    Sup. 

Express  Co.,  161  Fed.  606.     Affirm-  Ct.  272. 
ed.      American    ^nd    other    Express 


86  Validity  and  Scope  op  the  [§  7. 

The  act.  while  repeating?  and  adopting  the  common  law  rule 
that  rates  should  l)e  reasonable,  had  as  its  j^i-incipal  purpose  the 
prevention  of  unjust  discrimination  and  undue  and  unreasonable 
preference.  The  shipper  could  protect  himself  more  easily  from 
mireasonal)le  rates  than  he  could  from  secret  and  ruinous  dis- 
crimination against  him  and  preference  to  his  competitor. 
Equality  of  treatment  and  the  "open  gateway  policy""''  are 
sought  to  be  obtained  by  the  act. 

§  7.  What  transportation  included  in  act. — The  transporta- 
tion included  in  the  act  is  that  "from  one  state  or  territory  of 
the  TTiiited  States,  or  the  District  of  Columbia,  to  any  other 
state  or  territory  of  the  United  States,  or  the  District  of  Co- 
lumbia, or  from  one  place  in  a  territory  to  any  other  place  in 
the  same  territory,  or  from  any  place  in  the  United  States  to 
an  adjacent  foreign  country  and  carried  from  such  place  to  a 
port  of  trans-shipment,  or  shipped  from  a  foreign  country  to 
any  place  in  the  United  States  and  carried  to  such  ])lace  from 
a  port  of  entry  either  in  the  United  States  or  an  adjacent  for- 
eign country."  The  above  quotation  is  taken  from  section  one 
of  the  original  act,  except  the  phrase  applying  to  transporta- 
tion between  places  in  the  same  territory  was  added  by  the 
amendment  of  June  29,  1906.  The  proviso  of  section  one,  con- 
tained in  the  original  act  and  retained  in  the  present  act,  is  as 
follows :  "^ 

"Provided,  however,  That  the  provisions  of  this  act  shall  not 
apply  to  the  transportation  of  passengers  or  property,  or  to  the 
receiving,  delivering,  storage,  or  handling  of  property  wholly 
within  one  state  and  not  shipped  to  or  from  a  foreign  country 
from  or  to  any  state  or  territory  as  aforesaid. ' ' 

The  Daniel  Ball"°  is  a  case  frequently  cited  and  sometimes 
given  a  construction  that  is  of  doubtful  correctness.  The  libel 
was  brought  by  the  United  States  for  penalties  under  the  act 
of  July  7,  1838,  5  Stat.  L.  304,  requiring  a  license  for  vessels  "to 
transport  any  merchandise  or  passengers  upon  the  bays,  lakes, 
rivers  or  other  navigable  waters  of  the  United  States."  Two 
questions  were  presented  by  the  steamer,  one  that  the  waters 
upon  which  she  plied  were  not  "navigable  waters  of  the  United 

=^Eahway  V.  E,  Co.  v.  Delaware,  "  Tlie      Daniel     Ball     v.     United 

L.  &  W.  E.  Co.,  14  I.  C.  C.  E.  191,  States,    10   Wall,   77   U.   S.   557,   19 

194.  L.  Ed.  999. 

^Post  §§  500,  501. 


§  7.]  Act  to  Regulate  Commerce.  87 

States."  This  question  being  answered  by  the  court's  holding 
that  such  waters  were  navigable  waters  within  the  meaning  of 
the  act,  it  was  further  contended  that  the  steamer  was  engaged 
wholly  in  internal  commerce.  It  was  admitted  that  she  received 
freight  originating  beyond  the  state  destined  to  points  in  the 
state  and  also  received  freight  in  the  state  destined  to  points 
beyond.  The  language  of  ]\Ir.  Justice  Field  must  be  construed 
in  connection  with  the  facts  of  the  case,  and  it  will  be  noticed 
that  he  -stresses  the  fact  that  the  transportation  was  "on  the 
navigable  waters  of  the  United  States."  The  language  of  the 
great  judge  who  wrote  the  opinion  which  is  frequently  cited  is 
as  follows : 

"So  far  as  she  was  employed  in  transporting  goods  destined 
for  other  states,  or  goods  brought  from  without  the  limits  of 
Michigan  and  destined  to  places  within  that  state,  she  was  en- 
gaged in  commerce  between  the  states,  and  however  limited  that 
commerce  may  have  been,  she  was,  so  far  as  it  went,  subject  to 
the  legislation  of  Congress.  She  was  employed  as  an  instrument 
of  that  commerce ;  for  whenever  a  commodity  has  begun  to  move 
as  an  article  of  trade  from  one  state  to  another,  commerce  in 
that  commodity  between  the  states  has  commenced.  The  fact 
that  several  different  and  independent  agencies  are  employed  in 
transporting  the  commodity,  some  acting  entirely  in  one  state, 
and  some  acting  through  two  or  more  states,  does  in  no  respect 
affect  the  character  of  the  transaction.  To  the  extent  in  which 
each  agency  acts  in  that  transportation,  it  is  subject  to  the  regu- 
lation of  Congress. 

"It  is  said  that  if  the  position  here  asserted  be  sustained, 
there  is  no  such  thing  as  the  domestic  trade  of  a  state;  that 
Congress  may  take  the  entire  control  of  the  commerce  of  the 
country,  and  extend  its  regulations  to  the  railroads  within  a 
state  on  which  grain  or  fruit  is  transported  to  a  distant  market. 

"We  answer  that  the  present  ease  relates  to  transportation 
on  the  navigable  waters  of  the  United  States,  and  we  are  not 
called  upon  to  express  an  opinion  upon  the  power  of  Congress 
over  interstate  commerce  when  carried  on  by  land  transporta- 
tion. And  we  answer  further,  that  we  are  miable  to  draw  any 
clear  and  distinct  line  between  the  authority  of  Congress  to  reg- 
ulate an  agency  employed  in  commerce  between  the  states,  when 
thHt  agency  extends  through  two  or  more  states,  and  when  it  is 
confined  in  its  action  entirely  within  the  limits  of  a  single  state. 


88  Validity  and  Scope  of  the  [§  7. 

If  the  authority  does  not  extend  to  an  agency  in  such  commerce 
when  the  agency  is  confined  within  the  limits  of  a  state,  its  en- 
tire authority  over  interstate  commerce  may  be  defeated.  Sev- 
eral agencies  combining,  each  taking  up  the  commodity  trans- 
ported at  the  boundary  line  at  one  end  of  a  state,  and  leaving 
it  at  the  boundary  line  at  the  other  end,  the  federal  jurisdiction 
would  be  entirely  ousted,  and  the  constitutional  provision  would 
be  a  dead  letter." 

It  cannot,  when  the  facts  of  the  case  are  considered,  be  cor- 
rectly contended  that  this  opinion  means  that  where  a  land  car- 
rier without  any  contract  of  through  shipment  receives  in  a  state 
a  commodity  for  transportation  to  another  point  in  the  same 
state  that  such  carrier  is  engaged  in  interstate  commerce,  even 
though  such  commodity  may  be  subsequently  transported  beyond 
the  state.  If  there  were  any  doubt  about  the  question,  it  has 
been  settled  by  the  Supreme  Court  in  Gulf,  C.  &  S.  F.  R.  Co.  v. 
Texas,'"  where  it  was  held  that  the  fact  that  goods  were  brought 
to  Texas  from  another  state,  would  not  make  a  shipment  of  such 
goods  after  they  arrived  in  Texas  to  another  point  in  the  state, 
interstate  commerce,  there  having  been  no  original  contract  for 
the  transportation  from  the  first  to  the  second  point  in  Texas.  A 
very  clear  and,  we  believe,  a  correct  statement  of  the  rule  is 
made  by  Mr,  Commissioner  Prouty,  who  said :  " 

''An  indispensable  element  in  every  through  shipment  would 
seem  to  be  a  contract  for  such  through  service ;  an  agreement  be- 
tween the  parties  at  the  inception  of  the  carriage  that  the  freight 
shall  be  transported  to  the  point  of  destination  at  the  through 
rate." 

It  is  undoubtedly  true  that  when  an  intrastate  carrier  joins 
in  a  through  rate,  a  through  tariff  or  a  through  bill  of  lading,  or 
submits  itself  to  any  ' '  common  control,  management,  or  arrange- 
ment for  a  continuous  carriage  or  shipment,"  it  becomes  subject 
to  the  provisions  of  the  act  to  regulate  commerce.  However,  if 
a  state  carrier  should  refuse  to  make  any  kind  of  an  agreement 
to  transport  interstate  freight  and  should  only  accept  freight 
when  tendered  to  it  in  the  state  and  to  be  transmitted  only  to 
a  point  in  the  same  state,  such  local  carrier  would  not  be  engaged 
in  interstate  commerce,  although  a  part  or  all  of  the  commodities 

=«20-i  U.   S.   403,   51  L.   Ed.   540,  =' Ee  Alleged  Unlawful  Eates  and 

27  Sup.  Ct.  360.  Practices,  7  I.  C.  C.  E.  240,  247. 


§  7.]  Act  to  Regulate  Commerce.  89 

shipped  may  have  been  brought  from  or  destined  to  another 
state.  In  Cincinnati,  N.  0.  &  T.  P.  R.  Co.  v.  Int.  Com.  Com.,'' 
the  above  statement  is  not  definitely  conceded,  but  the  rule  as 
stated  is  supported  by  the  case  of  Gulf,  Colorado  &  S.  F.  Ry. 
Co.  V.  Texas,  supra.  In  the  case  against  the  commission,  just 
cited,  the  court  said: 

''It  may  be  true  that  the  ''Georgia  Railroad  Company"  as  a 
corporation  of  the  State  of  Georgia,  and  whose  entire  road  is 
within  that  state,  may  not  be  legally  compelled  to  submit  itself 
to  the  provisions  of  the  act  of  Congress,  even  when  carrying, 
between  points  in  Georgia,  freight  that  has  been  brought  from 
another  state.  It  may  be  that  if,  in  the  present  case,  the  goods 
of  the  James  &  ]\Iayer  Buggy  Company  had  reached  Atlanta, 
and  there  and  then,  for  the  first  time  and  independently  of  any 
existing  arrangement  with  the  railroad  companies  that  had 
transported  them  thither,  the  Georgia  Railway  Company  was 
asked  to  transport  them,  whether  to  Augusta  or  to  Social  Circle, 
that  company  could  undertake  such  transportation  free  from  the 
control  of  any  supervision  except  that  of  the  State  of  Georgia. 
But  when  the  Georgia  Railroad  Company  enters  into  the  car- 
riage of  foreign  freight,  by  agreeing  to  receive  the  goods  by  vir- 
tue of  foreign  through  bills  of  lading,  and  to  participate  in 
through  rates  and  charges,  it  thereby  becomes  part  of  a  contin- 
uous line,  not  made  by  a  consolidation  with  the  foreign  compan- 
ies, but  made  by  an  arrangement  for  the  continuous  carriage  or 
shipment  from  one  state  to  another,  and  thus  becomes  amenable 
to  the  federal  act,  in  respect  to  such  interstate  commerce.  We 
do  not  perceive  that  the  Georgia  Railroad  Company  escaped 
from  the  supervision  of  the  commission,  by  requesting  the  for- 
eign companies  not  to  name  or  fix  any  rates  for  that  part  of  the 
transportation  which  took  place  in  the  State  of  Georgia  when  the 
goods  were  shipped  to  local  points  on  its  road.  It  still  left  its 
arrangement  to  stand  with  respect  to  its  terminus  at  Augusta 
and  to  other  designated  points.  Having  elected  to  enter  into 
the  carriage  of  interstate  freights  and  thus  subjected  itself  to 
the  control  of  the  commission,  it  would  not  be  competent  for  the 


^  162  U.   S.   184,   192,  40  L.  Ed.  rado  &  N.  W.  By.  Co.,  157  Fed.  342, 

935,  938,  16  Sup.  Ct.  700.    See  alao,  85  C.  C.   A.  48 ;    Chicago,  B.  &  Q. 

United    States   v.    Wood,    145    Fed.  R.    Co.   v.   United   States,   157   Fed. 

405,    411;    United    States    v.    Colo-  830,  85  C.  C.  A.  194. 


90  Vauditv  and  Scope  of  the  [§  8. 

coiiipaiiy  to  limit  that  control,  in  respect  to  foreign  traffic,  to 
certain  points  on  its  road  and  exclude  other  points. ' ' 

It  is  not  the  origin  or  ultimate  destination  of  the  freight  that 
determines  the  question  of  whether  or  not  it  is  interstate  or  in- 
trastate commerce.  A  commodity  moving  from  New  York  to 
Savannah  may  be  interstate  commerce.  When  that  commodity  is 
delivei-ed  to  its  owner  at  Savannah,  the  interstate  transporta- 
tion has  ceased.  The  owner  may  thereafter  slii])  the  same  com- 
modity to  Atlanta  without  a  break  of  the  bulk,  tiiis  second  ship- 
ment is  intrastate  commerce.  If,  however,  the  owner  had  by  one 
contract  shipped  the  connnodit}'^  from  New  York,  through  Savan- 
nah, to  Atlanta,  the  whole  movement  would  have  been  inter- 
state commerce.  In  United  States  v.  Wood,  145  Fed.  405,  411, 
Judge  Holland  said:  ''The  test  of  subjection  to  the  act  is 
through  routing  in  interstate  commerce.  When  a  carrier  unites 
with  one  or  others  in  making  a  rate  for  interstate  traffic  and  a 
through  bill  is  issued  therefor,  it  is  subject  to  the  act."  Trans- 
portation originating  and  ending  in  a  state  but  passing  through 
another  state  or  territory  is  interstate  commerce.'"  Water  car- 
riers not  joining  in  a  through  route  or  common  arrangement 
with  rail  carriers  are  not  subject  to  the  provisions  of  the  act."" 

§  8.  Powers  and  procedure  of  the  commission. — In  the  first 
seven  sections  of  the  act  are  stated  the  rights  of  the  shipper  and 
the  duties  of  the  carrier.  Sections  eight,  nine,  thirteen,  four- 
teen, fifteen,  sixteen,  sixteen-a  and  twenty  relate  to  the  rem- 
edies of  shippers,  and  the  administration  of  the  act  by  the  com- 
mission. Section  ten  relates  to  public  penalties,  section  eleven 
to  the  appointment  of  the  commissioners,  sections  twelve,  eigh- 
teen, twenty-one,  twenty-two  and  twenty-four  apply  to  the  com- 
mission's purely  administrative  duties.  Section  seventeen  re- 
lates to  forms  of  procedure.  Section  twenty-two  expressly  re- 
tains existing  common  law  and  statutory  remedies,  and  section 
twenty-three  provides  for  cumulative  remedies  in  the  courts  of 
the  United  States.  Section  sixteen  also  provides  a  period  of  lim- 
itation in  which  to  bring  complaints  for  damages.  Section 
twenty  makes  the  receiving  carrier  liable  for  loss,  damage,  or 
injury   to   propert}^   which   it   has   received   for   transportation, 

=«Hanley    v.    Kansas    City    S.    E.  14.5    IT.    S.    392,    36   L.    Ed.    672,    4 

Co.,  187  U.   S.  617,  47  L.  Ed.  333,  J.  C.  H.  87,  12  Sup.  Ct.  806. 

23  Sup.  Ct.  214.     Distinguishing  Le-  '"  Re      Jurisdiction     Over     Water 

high  Valley  R.  Co.  v.  Pemisylvania,  Carriers,  15  I.  C.  C.  R.  205. 


§  8.]  Act  to  Eegulate  Commerce.  91 

whether  caused  by  it  or  a  connecting  carrier  to  whom  it  may 
have  delivered  the  shipment. 

The  duties  prescribed  in  the  act  to  regulate  commerce  are  not 
in  substance  broader  than  such  duties  at  common  law.  It  is  in 
the  remedies  to  enforce  such  duties  that  the  act  possesses  its 
real  importance.  When  a  common  carrier  has  violated  the  act 
he  is  "liable  to  the  person  or  persons  injured  thereby  for  the 
full  amount  of  damages  sustained  in  consequence  of  any  such 
violation,"  and,  in  addition  to  this  common  law  damage,  to  "a 
reasonable  counsel  or  attorney's  fee."  Suit  for  such  damages 
the  act  says  may  be  brought  by  "complaint  to  the  commission," 
or  by  suit  "in  any  district  or  circuit  court  of  the  United  States 
of  competent  jurisdiction." 

The  Supreme  Court  of  the  United  States,  speaking  of  the  pro- 
vision of  section  nine,  just  quoted,  says:^^  "We  think  that  it 
inevitablj"  follows  from  the  context  of  the  act  that  the  inde- 
pendent right  of  an  individual  originally  to  maintain  actions  in 
courts  to  obtain  pecimiary  redress  for  violation  of  the  act  con- 
ferred by  the  ninth  section  must  be  confined  to  redress  of  such 
wrongs  as  can,  consistently  with  the  contest  of  the  act,  be  re- 
dressed by  courts  without  previous  action  by  the  commission." 
This  case  was  a  suit  brought  in  a  state  court  to  recover  damages 
for  an  alleged  illegal  rate  charged,  the  rate  being  that  prescribed 
in-  a  legally  filed  tariff  which  had  never  been  declared  by  the 
commission  to  be  in  violation  of  the  law.  AVhile  this  suit  was 
brought  in  a  state  court,  and  while  express  authority  to  sue  in 
the  United  States  courts  is  granted  l)y  section  nine,  the  rea- 
soning of  the  court  would  demand  the  same  decision  had  the 
suit  been  brought  in  a  "Court  of  the  United  States  of  competent 
jurisdiction." 

Prior  to  the  Hepburn  Act  the  commission  might  determine 
whether  a  particular  rate  was  just  or  unjust,  but  could  not  pre- 
scribe a  tariff  of  rates  to  control  in  the  future.  The  amend- 
ment of  June  29,  1906,  gave  power  to  the  commission,  upon  the 
complaint  of  natural  or  corporate  persons,  including  mercan- 
tile, agricultural,  or  manufacturing  societies,  public  corpora- 
tions and  state  railroad  commissions,  or  on  its  own  motion,  to 
make  investigations  with  reference  to  rates  or  practices  of  inter- 


^  Texas  &  Pae.  Ey.  Co.  v.  Abilene      Cotton  Oil  Co.,  204  U.  S.  426,  51  L. 
Ed.  553,  27  Sup.  Ct.  350. 


92  Validity  and  Scope  op  the  [§  9. 

state  carriers,  to  make  reports  stating  its  eon  elusions,  together 
witli  its  decision,  order  or  requirement,  and  when  damages  are 
awarded,  such  report  to  include  the  findings  of  fact  on  which 
the  award  was  made;  power  and  authority  was  granted  to  the 
commission  and  it  was  made  its  duty  ' '  whenever,  after  full  hear- 
ing upon  a  complaint  made  as  provided  in  section  thirteen  of 
this  act,  or  upon  complaint  of  any  common  carrier,  it  shall  be  of 
the  opinion  that  any  of  the  rates,  or  charges  whatsoever,  de- 
manded, charged,  or  collected  by  any  carrier  or  carriers,  subject 
to  the  provisions  of  this  act,  for  the  transportation  of  persons 
or  property  as  defined  in  the  first  section  of  this  act,  or  that  any 
regulations  or  practices  whatsoever  of  such  carriers  affecting 
such  rates,  are  unjust  or  imreasonable,  or  unjustly  discrimina- 
tory, or  unduly  preferential  or  prejudicial,  or  otherwise  in  vio- 
lation of  any  of  the  provisions  of  this  act,  to  determine  and 
prescribe  what  Mall  be  the  just  and  reasonable  rate  or  rates, 
charge  or  charges  to  be  thereafter  observed  in  such  cases  as  the 
maximum  to  be  charged;  and  what  regulation  or  practice  in 
respect  to  such  transportation  is  just,  fair,  and  reasonable  to  be 
thereafter  followed ;  and  to  make  an  order  that  the  carrier  shall 
cease  and  desist  from  such  violations,  to  the  extent  to  which  the 
commission  finds  the  same  to  exist,  and  shall  not  thereafter  pub- 
lish, demand,  or  collect  any  rate  or  charge  for  such  transporta- 
tion in  excess  of  the  maximum  rate  or  charge  so  prescribed,  and 
shall  conform  to  the  regulation  or  practice  so  prescribed.  The 
power  was  also  given  the  commission  to  require  the  establish- 
ment of  through  routes  and  to  fix  joint  rates  and  prescribe  an 
allowance  which  must  be  reasonable  for  a  service  or  instrumen- 
tality furnished  by  the  owner  of  property  transported. 

All  awards  of  the  commission,  except  orders  for  the  payment 
of  money,  take  effect  within  a  reasonable  time,  not  less  than 
thirty  days,  and  continue  in  force  as  prescribed  not  exceeding 
two  years  unless  suspended,  set  aside,  or  modified  by  the  com- 
mission or  a  court  of  competent  jurisdiction ;  and  it  is  the  duty 
of  every  common  carrier,  its  agents  and  employees,  to  observe 
and  comply  with  such  orders  under  penalty.'*' 

§  9.  Court  procedure  with  reference  to  the  orders  of  the  com- 
mission.— The  commission  is  given  power  to  apply  to  the  courts 
to  enforce  its  orders.     Writs  of  mandamus  may  issue  by  the 

*^  Post  chapter  nine. 


§  9.]  Act  to  Regulate  Commerce.  93 

circuit  and  district  courts  of  the  United  States  to  compel  the 
movement  and  transportation  of  freight  without  undue  discrim- 
ination, and  to  compel  the  furnishing  of  cars  and  other  facilities 
of  transportation.  Suits  for  reparation,  after  an  order  therefor 
has  been  granted  by  the  commission,  must  be  brought  in  the  cir- 
cuit and  district  courts.  Under  certain  circumstances,  courts 
may  suspend  or  set  aside  the  orders  of  the  commission.^  "What 
these  circumstances  are  will  be  fully  discussed  herein  in  chap- 
ter five. 


Post  chapter  five. 


CHAPTER  II. 

ALL  SERVICES  RENDERED  BY  COMMON  CARRIERS  IN 
THE  TRANSPORTATION  OF  PERSONS  OR  PROPERTY 
OR  IN  CONNECTION  THEREWITH  MUST  BE  JUST 
AND  REASONABLE. 

§  .50.  All  charges  must  be  reasonable. 

51.  Cost  of  carriers'  equipment. 

52.  Cost  of  service. 

53.  Value  of  service. 

54.  Value  of  the  commodity,  its  general  utility  and  danger  of  loss. 

55.  Competition   or   its   absence   considered   in   determining   reasonable- 

ness of  rate. 

56.  Eates  affected  by  amount  of  tonnage. 

57.  Distance  and  rate  per  ton  mile. 

58.  General  business  conditions. 

59.  Rates  long  in  existence  are  presumed  to  be  reasonable. 

(iO.     Grouping  territory  and  giving  each   grouji   same   rate   legal   under 

some  circumstances. 
(51.     Basing  point  system. 

62.  Comparisons   between    different    lines   as   a    means    of   determining 

correct  rates. 

63.  Car  load  and  less  than  car  load  movements  as  affecting  the  rate. 

64.  Relation  of  throiigh  rates  to  the  total  of  the  local  rates.  . 

65.  The  public  interest  must  be  considered  in  making  rates. 

66.  Through  routes  and  joint  rates. 

67.  General  princijdos  ajtplicable  to  the  question,  what  is  a  reasonable 

rate? 

§  50.  All  charges  must  be  reasonable. — At  common  law  and 
Tinder  the  Interstate  Commerce  Act  all  charges  made  by  com- 
mon carriers  for  any  service  rendered,  or  to  be  rendered,  in  the 
transportation  of  persons  or  property,  or  in  connection  there- 
with, shall  be  just  and  reasonable,  and  every  unjust  and  imrea- 
sonable  charge  for  such  service,  or  any  part  thereof,  is  pro- 
hibited and  declared  unlawful.^  This  principle  of  law  neces- 
sarily arises  from  the  franchises  and  practical  monopoly  inci- 

^Post  §  504.  Int.  Com.  Com.  v.  167  U.  S.  479,  42  L.  Ed.  24-5,  17 
Cincinnati,  N.   O.  &  T.  P.   Ey.  Co.,       Sup.  Ct.  896. 

94 


§  50.]  Charges  by  Common  Carriers  95 

dent  to  common  carriers.  The  principle  is  not  new,  but  for 
over  two  hundred  years  when  private  property  is  "affected  with 
a  public  interest,  it  ceases  to  be  juris  privati  only."  Mr.  Chief 
Justice  Waite,  speaking  of  governmental  regulation  of  public 
carriers,  said : " 

"This  brings  us  to  inquire  as  to  the  principles  upon  which 
this  power  of  regulation  rests,  in  order  that  we  may  determine 
Avhat  is  within  and  what  without  its  operative  effect.  Looking, 
then,  to  the  common  law,  from  whence  came  the  right  which  the 
constitution  protects,  we  find  that  when  private  property  is 
"affected  with  a  public  interest,  it  ceases,  to  be  juris  privati 
only."  This  was  said  by  Lord  Chief  Justice  Hale  more  than 
two  hundred  years  ago,  in  his  treatise  De  Portibus  Maris,  1 
Harg.  L.  Tr.,  78,  and  has  been  accepted  without  objection  as 
an  essential  element  in  the  law  of  property  ever  since.  Prop- 
erty does  become  clothed  with  a  public  interest  when  used  in  a 
manner  to  make  it  of  public  consequence,  and  affect  the  com- 
munity at  large.  When,  therefore,  one  devotes  his  property  to 
a  use  in  which  the  public  has  an  interest,  he,  in  effect,  grants 
to  the  public  an  interest  in  that  use,  and  must  submit  to  be 
controlled  by  the  public  for  the  common  good,  to  th^  extent  of 
the  interest  he  has  thus  created.  He  may  withdraw  his  grant 
by  discontinuing  the  use ;  but,  so  long  as  he  maintains  the  use, 
he  must  submit  to  the  control." 

What  is  a  "just  and  reasonable"  charge  is  not  always  easily 
determinable,  but  that  is  the  dissideratum  sought  by  the  law. 
It  will  ])e  noted  that  the  charges  "in  connection"  with  trans- 
portation are  included  within  the  requirement  of  reasonableness. 
The  same  reason  applies  to  charges  for  demurrage,^  refrigera- 
tion/ delivery,'  terminal  charges,**  as  well  as  other  charges  made 
for  any  service  connected  with  transportation.  The  Supreme 
Court,   however,    has   held,    reversing  the    commission    and   the 

^Miinn    V.    Illinois,    94    U.    S.,    4  ''St.    Louis    Hay   &   Grain    Co.    v. 

Otto  113,  24  L.  Ed.  77,  84.  Chicago,  B.  &  Q.  E.  Co.,  11  I.  C.  C. 

^Penn.    Millers'    Asso.    v.    Phila-  E.  82,  87. 
delphia  &  E.   E.   Co.,   8   I.   C.   C.  E.  "Int.    Com.    Com.    v.    Chicago,   B. 

531,  558.  &  Q.  E.  Co.,  186  U.  S.  320,  342,  46 

*Ee    Charges    for    Transportation  L.  Ed.  1182,  1193,  22  Sup.  Ct.  824; 

and  Eefrigeration   of  Fruit.      11   I.  Cattle  Eaisers'  Asso.  v.  Chicago,  B. 

C.     C.     E.     129,     Knudson-Ferguson  &  Q.  E.  Co.,  12  I.  C.  C.  E.  507. 
Fruit  Co.  V.  Mich.  Cent.  E.  Co.,  148 
Fed.  968. 


96  ]\IusT  BE  Reasonable.  [§  51. 

lower  courts,  that  carriers  are  entitled,  for  a  service  and  expense 
in  stopping  goods  in  transit,  to  compensation  in  addition  to  the 
actual  expense  incurred.^  "Whether  or  not  a  particular  rate  on 
a  single  commodity  is  in  and  of  itself  just  and  reasonable  can 
not  be  demonstrated.*  Certain  principles  and  presumptions 
have  been  made  use  of  by  the  courts  and  commission  in  determin- 
ing cases  that  came  before  them,  but  it  can  not  be  claimed  that 
rate  making  is  a  science.  Very  early  in  its  history,  the  com- 
•mission  expressed  the  difficulty  of  determining  what  constituted 
a  just  rate  as  follows: 

"The  question  of  the  reasonableness  of  rates  is  always  a  per- 
plexing one.  A  great  variety  of  considerations  are  necessarily 
involved  in  each  instance.  Theory  and  conjecture  merely  are 
not  enough.  A  comparison  of  one  isolated  rate  with  another  is 
not  sufficient.  The  whole  field  must  be  considered  in  order  to 
approximate  justice,  and  at  best  the  result  can  not  be  regarded 
as  other  than  an  approximation.'"* 

Some  of  the  principles  announced  by  the  courts  and  the  com- 
mission will  be  stated  in  the  next  few  succeeding  sections. 

§  51.  Cost  of  carrier's  equipment. — Bonded  indebtedness,  op- 
erating expenses  and  dividends  on  the  investment  of  the  carrier 
all  enter  into  the  "cost  of  service"  and  should  be  considered, 
but  the  indebtedness  and  the  stock  upon  which  dividends  are 
sought  must  represent  actual  obligations  contracted  in  good 
faith  and  the  expenses  must  be  actual  and  reasonable."  Mr. 
Commissioner  Prouty,^  discussing  this  question,  aptly  says:  "To 
make  the  capital  accoimt  of  our  railroads  the  measure  of  their 
legitimate  earnings  would  place,  as  a  rule,  the  corporation 
which  has  been  honestly  managed  from  the  outset  under  enor- 
mous disadvantages."  What  the  company  is  entitled  to  ask  is 
a  fair  return  upon  the  value  of  that  which  it  employs  for  the 


•  So.  Ey.  Co.  V.  St.  Louis  Hay  &  680,  31  L.  Ed.  841,  8  Sup.  Ct.  1028. 
Grain  Co.,  214  U.  S.  297,  53  L.  Ed.  Ee     Alleged     Excessive     Eates     on 

,   Sup.   Ct.  .  Food  Products,  4  I.  C.  C.  E.  48,  116, 

*  National     Hay     Asso.     v.     Lake  3  I.  C.  E.  93,  151. 

Shore  &  M.  S.  E.  Co.,  9  L  C.  C.  E.  » Grain    Shippers'    Asso.    v.    HI. 

264,  303,  304,  305.  Cent.  E.  Co.,  8  I.  C.  C.  E.  158,  182. 

'  Howell   V.    New   York,   L.    E.    &  See   also    Ee    Proposed   Advance   in 

W.  E.   Co.,  2  L   C.  C.  E.   272,   2  I.  Freight    Eates,   9    L    C.    C.   E.    382, 

C.  E.   162.  where  is  found  a  full  discussion  of 

"  Dow    V.    Beidelman,    125    U.    S.  the  question. 


§  51.]  Charges  by  Common  Carriers  97 

public  convenience.'^  In  considering  the  value  of  the  property 
employed  in  serving  the  public,  it  must  be  remembered  that 
such  a  test  is  not  absolute  and,  at  times,  yields  to  the  public 
interest  and  the  rule  as  to  value  of  service,  both  of  which  are  dis- 
cussed hereinafter.  The  cost  and  value  of  the  railroad  prop- 
erties, being  merely  one  of  the  various  facts  that  may  be  con- 
sidered in  determining  what  in  a  particular  case  constitutes  a 
reasonable  rate. 

The  value  of  property  employed  for  the  public  convenience  is 
an  important  element  in  determining  the  reasonableness  of  a 
whole  schedule  of  rates.  It  can  be  of  little  value  in  determining 
the  reasonableness  of  rates  on  a  particular  commodity.  This  is 
true  because  no  method  has  ever  yet  been  devised  by  which  the 
cost  of  moving  a  particular  commodity  can  be  determined. 
"Whether  or  not  such  commodity  is  bearing  its  proper  proportion 
of  the  charges  that  must  be  received  to  make  "a  fair  return"  to 
the  carrier  is  a  question  that  can  not  yet,  if  ever,  be  answered. 
It  is  true  that  certain  out-of-pocket  expenses  can  be  allocated, 
but  the  proportion  of  the  cost  of  maintenance,  general  superin- 
ten dance  and  other  general  expenses  that  should  be  charged 
against  a  particular  movement  can  not  be  determined  with  any 
degree  of  certainty.  The  rule  announced  in  Smyth  v.  Ames 
supra,  is  as  follows: 

"We  hold,  however,  that  the  basis  of  all  calculations  as  to 
the  reasonableness  of  rates  to  be  charged  by  a  corporation  main- 
taining a  highway  under  legislative  sanction  must  be  the  fair 
value  of  the  property  being  used  by  it  for  the  convenience  of 
the  public.  And.  in  order  to  ascertain  that  value,  the  original 
cost  of  construction,  the  amount  expended  in  permanent  im- 
provements, the  amount  and  market  value  of  its  bonds  and 
stock,  the  present  as  compared  with  the  original  cost  of  construc- 
tion, the  probable  earning  capacity  of  the  property  under  par- 
ticular rates  prescribed  by  statute,  and  the  sum  required  to  meet 
operating  expenses,  are  all  matters  for  consideration,  and  are 

"Smyth      V.      Ames,      (Nebraska  U.  S.  1,  53  L.  Ed.         ,  29  Sup.  Ct. 

Freight  Kate  Case),  169  TJ.  S.  446,  148;   Brabham  v.  Atlantic  C.  L.  R. 

42   L.    Ed.    819,    18    Sup.    Ct.    418;  Co.,  11  I.  C.  C.  R.  464,  473;  WiU- 

Covington  &  Lexington  Turnpike  R.  cox    v.    Consolidated    Gas    Co.,    212 

Co.  V.  Sandford,  164  U.  S.  578;  41  TJ.   S.   19.   53   L.   Ed,         ,  29   Sup, 

L.  Ed.  560,  17  Sup.  Ct.  198;  Knox-  Ct.   392. 
ville   V.    KnoxvilJe   Water    Co.,    212 


98  ]\IusT  BE  Reasonable.  [§  51. 

to  be  given  sneli  weight  as  may  l)e  just  and  right  in  each  ease. 
We  do  not  say  that  there  may  not  be  other  matters  to  be  regarded 
in  estimating  the  value  of  tlie  property.  What  the  company  is 
entitled  to  ask  is  a  fair  return  upon  the  value  of  that  which  it 
employs  for  the  public  convenience.  On  the  other  hand,  what 
the  public  is  entitled  to  demand  is  that  no  more  be  exacted  from 
it  for  the  use  of  a  public  highway  than  the  services  rendered  by 
it  are  reasonably  worth." 

It  should  be  kept  in  mind  that  this  oft  quoted  rule  formu- 
lated by  the  Supreme  Court  was  announced  in  a  suit  to  enjoin 
an  act  "To  Regulate  Railroads,  to  Classify  Freights,  to  Fix 
Reasonable  Maximum  Rates  to  be  Charged  for  the  Transporta- 
tion of  Freights  upon  Each  of  the  Railroads  in  the  State  of 
Nebraska,  and  to  Provide  Penalties  for  the  Violation  of  this 
Act."  While  the  rule  is  a  correct  rule  of  law,  as  limited  by  the 
last  sentence  of  the  foregoing  quotation,  when  considered  in 
reference  to  a  general  schedule  of  rates,  it  can  not  be  practically 
applied  to  a  particular  rate.  Even  with  reference  to  a  general 
schedule  of  rates  it  should  be  construed  in  connection  wdth  the 
decision  of  the  case  of  Covington  &  Lexington  Turnpike  R.  Co. 
V.  Sandford,"  where  the  same  distinguished  Judge,  IMr.  Justice 
Harlan,  who  wrote  the  opinion  in  Symth  v.  Ames,  said : 

"It  is  proper  to  say  that  if  the  answer  had  not  alleged,  in 
substance,  that  the  tolls  prescribed  by  the  act  of  1890  w^ere 
wholly  inadequate  for  keeping  the  road  in  proper  repair  and 
for  earning  dividends,  we  could  not  say  that  the  act  was  un- 
constitutional merely  because  the  company  (as  was  alleged  and 
as  the  demurrer  admitted)  could  not  earn  more  than  4  per  cent, 
on  its  capital  stock.  It  cannot  be  said  that  a  corporation  operat- 
ing a  public  highway  is  entitled,  as  of  right,  and  without  refer- 
ence to  the  interests  of  the  public,  to  realize  a  given  per  cent, 
upon  its  capital  stock.  When  the  question  arises  whether  the 
legislature  has  exceeded  its  constitutional  power  in  prescribing 
rates  to  be  charged  by  a  corporation  controlling  a  public  high- 
way, stockholders  are  not  the  only  persons  whose  rights  or  in- 
terests are  to  be  considered.  The  rights  of  the  public  are  not  to 
be  ignored.  It  is  alleged  here  that  the  rates  prescribed  are  un- 
reasonable and  unjust  to  the  company  and  its  stockholders.  But 
that  involves  an  inquirjj  as  to  what  is  reasonable  and  just  for  the 

"Supra,  note". 


§  51.]  Charges  by  Common  Carriers  99 

public.  If  the  establishing  of  new  lines  of  transportation  should 
cause  a  diminution  in  the  number  of  those  who  need  to  use  a 
turnpike  road,  and.  consequently,  a  diminution  in  the  tolls  col- 
lected, that  is  not,  in  itself,  a  sufficient  reason  why  the  corpora- 
tion, operating  the  road,  should  be  allowed  to  maintain  rates 
that  would  be  unjust  to  those  who  must  or  do  use  its  property. 
The  public  cannot  properly  be  subjected  to  unreasonable  rates 
in  order  simply  that  stockholders  may  earn  dividends.  The  leg- 
islature has  the  authority  in  every  case,  where  its  power  has 
not  been  restrained  by  contract,  to  proceed  upon  the  ground  that 
the  public  may  not  rightfully  be  required  to  submit  to  unrea- 
sonable exactions  for  the  use  of  a  public  highway  established 
and  maintained  under  legislative  authority.  If  a  corporation 
cannot  maintain  such  a  highway  and  earn  dividends  for  stock- 
holders, it  is  a  misfortmie  for  it  and  them  which  the  constitution 
does  not  require  to  be  remedied  by  imposing  unjust  burdens 
upon  the  public." 

Value  given  to  property  by  reason  of  its  excessive  earning 
power  should  not  be  considered,  though  the  reasonable  value  of 
a  franchise  is  an  element  in  arriving  at  the  total  value  of  prop- 
erty. On  the  question  of  what  is  a  reasonable  return,  the  Su- 
preme Court  has  said :  " 

"There  is  no  particular  rate  of  compensation  which  must  in 
all  cases  and  in  all  parts  of  the  country  be  regarded  as  sufficient 
for  capital  invested  in  business  enterprises.  Such  compensation 
may  depend  greatly  upon  circumstances  and  locality;  among 
other  things,  the  amount  of  risk  in  the  business  is  a  most  im- 
portant factor,  as  well  as  the  localitj^  where  the  business  is  con- 
ducted and  the  rate  expected  and  usually  realized  there  upon  in- 
vestments of  a  somewhat  similar  nature  with  regard  to  the  risk 
attending  them.  There  may  be  other  matters  which  in  some 
cases  might  also  be  properly  taken  into  account  in  determining 
the  rate  which  an  investor  might  properly  expect  or  hope  to 
receive  and  which  he  would  be  entitled  to  without  legislative 
interference.  The  less  risk,  the  less  right  to  any  imusual  returns 
upon  the  investments." 

In  this  case  the  whole  schedule  of  rates  was  involved  and  six 
per  cent,  was  held  to  be  reasonable,  the  court  saying:  ''Taking 
all  facts  into  consideration,  we  concur  with  the  court  below  on 

"  Sux)ra,  note  ^-,  Consolidated  Gaa  Co,  C&se, 


100  ^Fr^sT  BE  Keasonable.  [§  51. 

this  question,  and  think  complainant  is  entitled  to  six  per  cent, 
on  the  fair  value  of  its  property  devoted  to  the  public  use." 

In  the  Knoxville  Water  Case,"  the  Supreme  Court  announced 
a  rule  as  to  depreciation  as  follows : 

"Before  coming  to  the  question  of  profit  at  all  the  company- 
is  entitled  to  earn  a  sufficient  sum  annually  to  provide  not  only 
for  current  repairs  but  for  making  good  the  depreciation  and 
replacing  the  parts  of  the  property  when  they  come  to  the  end 
of  their  life.  The  company  is  not  bound  to  see  its  property 
gradually  waste,  without  making  provision  out  of  earnings 
for  its  replacement.  It  is  entitled  to  see  that  from  earnings  the 
value  of  the  property  invested  is  kept  unimpaired,  so  that  at 
the  end  of  any  given  term  of  years  the  original  investment  re- 
mains as  it  was  at  the  beginning.  It  is  not  only  the  right  of  the 
company  to  make  such  a  provision,  but  it  is  its  duty  to  its  bond 
and  stockholders,  and,  in  the  case  of  a  public  service  corporation 
at  least,  its  plain  duty  to  the  public.  If  a  different  course  were 
pursued  the  only  method  of  providing  for  replacement  of  prop- 
erty which  has  ceased  to  be  useful  would  be  the  investment  of 
new  capital  and  the  issue  of  new  bonds  or  stocks." 

The  rule  has  no  application  to  the  rates  charged  by  express 
companies.     Mr.  Commissioner  Prouty  said:" 

''In  passing  upon  an  entire  schedule  of  railway  rates  (and 
when  in  this  proceeding  we  pass  upon  the  base  rate  of  these 
defendants  we  really  consider  their  entire  schedule)  the  con- 
trolling factor  is  the  value  of  the  property  which  is  devoted  to 
the  public  service.  The  cost  of  originally  producing  or  of  re- 
producing that  property  is  an  important  consideration,  as  is  also 
the  capitalization  of  the  company  and  the  value  of  its  securities. 
In  revising  the  rates  of  these  express  companies  those  consider- 
ations can  have  but  little  weight,  since  there  is  no  real  rela- 
tion between  the  value  of  the  property  and  the  service  per- 
formed, nor  in  the  case  of  these  companies,  between  their  cap- 
ital stock  and  just  earnings." 

Increased  cost  of  labor  and  equipment  makes  the  cost  of  ser- 
vice higher,  but  this  is  generally  offset  by  increased  efficiency. 
This  question  is  interestingly  discussed  and  valuable  tables 
given  in  the  case  of  Class  and  Commodity  Ke  Eates  from  St. 
Louis  to  Texas  Common  Points,  11  I.  C.  C.  R.  238  et.  seq. 

"Supra,  note".  "  Kin  del   v.   Adams   Express    Co., 

13  I.  C.  C,  E.  475,  485. 


§  52.]  Charges  by  Common  Carriers  101 

§  52.  Cost  of  service. — The  value  of  the  equipment  of  a  com- 
mon carrier,  of  course,  is  an  element  in  determining  what  it  costs 
to  transport  any  particular  commodity,  and  what  such  cost  is, 
that  is  the  "cost  of  service,"  is  a  fact  that  is  properly  con- 
sidered in  determining  what  is  a  reasonable  and  just  rate  to  be 
charged.'^  This  item  will  be  seen  referred  to  by  the  Interstate 
Commerce  Commission  frequently  in  its  opinions  determining 
whether  or  not  the  rates  under  discussion  are  or  are  not  reason- 
able. The  Supreme  Court,  speaking  of  the  commission,  says : 
"The  tribunal  may  and  should  consider  the  legitimate  interests 
as  well  of  the  carrying  companies  as  of  the  traders  and  ship- 
pers.""  In  considering  a  proposed  advance  in  freight  rates,^" 
Mr.  Commissioner  Prouty  first  considers  "is  the  rate  reasonable 
estimated  by  the  cost  and  value  of  the  service."  In  another 
case,'"  Mr.  Commissioner  Clements  said :  ' '  The  test  of  the  rea- 
sonableness of  a  rate  is  not  the  amount  of  the  profit  in  the  busi- 
ness of  the  shipper  or  manufacturer,  but  whether  the  rate 
yields  a  reasonable  compensation  for  the  services  rendered." 
Cost  of  service,  however,  can  not  be  made  an  absolute  guide  in 
fixing  rates.  District  Judge  Bethea  "  well  says :  ' '  The  cost  of 
service  to  a  carrier  would  be  an  ideal  theory,  but  it  is  not  prac- 
ticable. Such  cost  can  be  reached  approximately,  but  not  accu- 
rately enough  to  make  this  factor  controling.  It  is  worthy  of 
consideration,  however."  Judge  Clements  expressed  the  rule  of 
the  commission  as  follows :  " 

"While  in  the  relative  adjustment  of  rates  as  between  places 
on  its  line  a  carrier  cannot  rightfully  ignore  the  relative  cost 
to  it  of  the  respective  services  rendered  by  it,  and  since  it  ordi- 
narily costs  more  to  haul  freight  a  longer  distance  than  a  shorter 
one,  the  carrier  cannot  rightfully  ignore  substantial  differences 

^^  Re   Alleged   Excessive   Rates   on  "Re  Proposed  Advance  in  Freight 

Food  Products,  4  I.  C.  C.  R.  48,  3  I.  Rates,  9  I.  C.  C.  R.  382. 

C.   R.   93 ;    Schumacher   Milling   Co.  -"  Central    Yellow    Pine    Asso.    v. 

V.  Chicago,  R.  I.  &  P.  Ry.  Co.,  6  I.  111.  Cent.  R.  Co.,  10  I.  C.  C.  R.  505. 

C.  C.  R.  61,  4  I.  C.  R.  373;  Re  Pro-  ■     =i  Int.  Com.  Com.  v.  Chicago  Great 

posed  Advances  in  Freight  Rates,  9  W.  R.  Co.,  141  Fed.  1003,  1015,  and 

I.  C.  C.  R.  382;   Int.  Com.  Com.  v.  eases    cited.      Affirmed,    same    style 

Chicago    G.   W.    Ry.    Co.,    141    Fed.  case,  209  U.  S.  108,  52  L.  Ed.  705, 

1003,  1015.  28  Sup.  Ct. 

"  Tex.  &  Pac.  Ry.  Co.  v.  Int.  Com.  "-  Cannon   v.   Mobile  &   O.   R.   Co., 

Com.,  162  U.  S.  197,  40  L.  Ed.  940,  11  I.  C.  C.  R.  537,  542. 
16  Sup.  Ct.  666,  5  I.  C.  R.  405. 


102  ]\IusT  BE  Reasonable.  [§  52. 

in  distance  where  all  other  circumstances  and  conditions  are 
equal,  or  substantially  similar,  there  are  other  matters  of  equal 
importance  to  that  of  cost  of  the  service  and  often  more  con- 
trolling which  must  also  be  considered.  Among  these  is  compe- 
tition both  of  carriers  and  of  markets.  The  greater  the  inequal- 
ity or  dissimilarity  in  other  potent  circumstances  or  conditions 
the  less  controlling  becomes  the  matter  of  relative  cost." 

In  determining  the  cost  of  service  Mr.  Commissioner  Clements 
said:  ''Expenditures  for  additions  to  construction  and  equip- 
ment should  be  reimbursed  b}^  all  the  traffic  they  accommodate 
during  the  period  of  their  duration,  and  improvements  that  will 
last  many  years  should  not  be  charged  wholly  against  the  rev- 
enue of  a  single  year."^  The  principle,  however,  must  be  ap- 
plied in  connection  with  the  holding  in  the  Knoxville  "Water  Co. 
case,"  that  earnings  should  be  sufficient  to  pay  a  reasonable  re- 
turn on  the  property  employed  in  the  public  service  and  pro- 
vide against  depreciation.  "Cost  of  service,"  could  not,  in  any 
event,  require  an  unreasonable  rate,  and,  under  some  circum- 
stances, a  carrier  may  be  compelled  to  perform  a  particular  ser- 
vice to  the  public  at  an  actual  loss.  In  Atlantic  C.  L.  R.  Co. 
v.  North  Carolina  Corporation  Commission "'  the  Supreme  Court 
had  under  consideration  an  order  of  the  North  Carolina  Commis- 
sion requiring  the  carrier  to  make  a  particular  connection  with 
certain  passenger  trains.  To  do  this  the  carrier  had  to  put  on 
an  extra  train  at  a  loss.  The  Supreme  Court  sustained  the 
order  of  the  North  Carolina  Commission,  saying : 

"But  this  ease  does  not  involve  the  enforcement  by  a  state  of 
a  general  scheme  of  maximum  rates,  but  only  whether  an  exer- 
cise of  state  authority  to  compel  a  carrier  to  perform  a  par- 
ticular and  specified  duty  is  so  inherently  unjust  and  unreason- 
able as  to  amoimt  to  the  deprivation  of  property  without  due 
process  of  law  or  a  denial  of  the  equal  protection  of  the  laws.  In 
a  case  involving  the  validity  of  an  order  enforcing  a  scheme  of 
maximum  rates,  of  course  the  finding  that  the  enforcement  of 
such  scheme  will  not  produce  an  adequate  return  for  the  opera- 

^  Central    Yellow    Pine    Asso.    v.  Co.,  212  U.  S.  1,  53  L.  Ed.         ,  29 

111.  Cent.  R.  Co.,  10  I.  C.  C.  R.  505;  Sup.  Ct.  148. 

111.  Cent.  R.  Co.  v.  Int.  Com.  Com.,  =^  Atlantic    Coast    Line    R.    Co.    v. 

206  U.  S.  441,  461,  51  L.  Ed.  1128,  North  Carolina  Corp.   Com.,  206  TJ. 

1136,  27  Sup.  Ct.  700.  S.  1,  24,  25,  51  L.  Ed.  933,  944,  27 

"Knoxville    v.    Knox^dlle    Water  Sup.  Ct.  585. 


§  53.]  Charges  by  Common  Carriers  103 

tion  of  the  railroad,  in  and  of  itself,  demonstrates  the  unrea- 
sonableness of  the  order.  Such,  however,  is  not  the  case  when 
the  question  is  as  to  the  validity  of  an  order  to  do  a  particular 
act,  the  doing  of  which  does  not  involve  the  question  of  the 
profitableness  of  the  operation  of  the  railroad  as  an  entirety. 
The  difference  between  the  two  cases  is  illustrated  in  St.  Louis 
&  S.  F.  R.  Co.  V.  Gill,  156  U.  S.  649,  39  L.  Ed.  567,  15  Sup.  Ct. 
Rep.  484,  and  Minneapolis  &  St.  L.  R.  Co.  v.  Minnesota,  186  U. 
S.  257,  46  L.  Ed.  1151,  22  Sup.  Ct.  Rep.  900.  But  even  if  the 
rule  applicable  to  an  entire  rate  scheme  were  to  be  here  ap- 
plied, as  the  findings  made  below  as  to  the  net  earnings  constrain 
us  to  conclude  that  adequate  remuneration  would  result  from 
the  general  operation  of  the  rates  in  force,  even  allowing  for 
any  loss  occasioned  by  the  running  of  the  extra  train  in  ques- 
tion, it  follows  that  the  order  would  not  be  unreasonable,  even 
if  tested  by  the  doctrine  announced  in  Smyth  v.  Ames  and  kin- 
dred cases." 

§  53.  Value  of  service. — The  shipper  cannot  ordinarily  pay 
more  than  the  service  is  worth,  consequently,  from  necessity, 
as  well  as  from  justice,  the  value  of  the  service  must  constitute 
the  maximum  charge.  Rates  should  be  proportioned  to  the 
value  of  the  service  to  the  sliipper.""  The  value  of  the  coimnodity 
enters  into  the  value  of  the  service,  and  consequently  must  also 
be  considered  in  determining  what  constitutes  a  reasonable 
rate."  That  the  interests  of  the  public  is  the  most  important 
consideration  in  determining  the  reasonableness  of  charges  by 
public  service  corporations,  has  been  frequently  announced  by 
the  Supreme  Court  as  an  established  principle  in  rate  making. 
Mr.  Justice  Harlan  says:''"  "The  public  can  not  properly  be 
subjected  to  unreasonable  rates  in  order  simply  that  stockholders 
may  earn  dividends."  This  view  is  further  supported  by  the 
case  of  Smyth  v.  Ames,'"  where  it  was  said :  "It  can  not  be 
admitted   that   a   railroad   corporation   maintaining   a   highway 


="  Delaware   State  Grange  v.   New  T.  C.  C.  "R.   548;    Int.  Corn.  Com.  v. 

York  etc.  R.  Co.,  4  I.  C.  C.  R.  58S,  C'liieaoo    G.    W.    R.    Co.,    141    Fed. 

3  T.  C.  R.  5.'54,  561;  Loud  v.  South  1003,  1015,  and  cases  cited. 
Carolina  R.   Co.,  5  I.  C.   C.  R.   529,  "Covington  &  L.   Turnpike  Road 

4  I.  C.  R.  205,  citing  cases.  Co.  v.  Sandford,  164  U.  S.  578,  596, 
"ITowoll   V.   New   York,   L.    E.   &  41  L.  Ed.  560,  566,  17  Sup.  Ct.  198. 

W.   R.   Co.,  2  I.   C.  C.  R.   272,  2   1.  '■"' 169   U.   S.   466,   42   L.   Ed.   819, 

C.  R.  162;   Tift  v.  So.  Ry.  Co.,  10  18  Sup.  Ct.  418. 


104  Must  be  IIeasonable.  [§  53. 

under  the  authority  of  the  state  may  fix  its  rates  with  a  view 
solely  to  its  own  interests,  and  ignore  the  rights  of  the  public. 
The  rights  of  the  public  would  be  ignored  if  rates  for  the  trans- 
portation of  persons  or  property  on  a  railroad  are  exacted  with- 
out reference  to  the  fair  value  of  the  property  used  for  the 
public  or  the  fair  value  of  the  services  rendered."  In  San 
Diego  Land  &  Toaati  Co.  v.  National  City,^°  the  Supreme  Court 
reviewed  and  approved  the  case  and  reiterated  the  principle  of 
the  importance  of  considering  "fair  value  *  *  *  of  the  services 
rendered. ' ' 

The  ''value  of  the  service"  may  mark  the  boundary  beyond 
which  rates  may  not  ordinarily  go,  but  the  rule  can  not  be  at 
all  times  applied.  The  commission  has  held  that  a  difference  in 
the  value  of  two  car  loads  of  peaches  would  not  justify  a  higher 
rate  on  the  most  valuable  car.*'  This  is  true  because  it  is  imprac- 
ticable to  know  the  exact  value  of  the  service  in  any  case,  and,  as 
will  be  frequently  seen  throughout  this  chapter,  rate  making 
does  not  yield  to  unalterable  theoretical  rules.  Judge  Bethea  *" 
says  of  the  rule :  ' '  This  is  considered  an  ideal  methed,  when 
not  interfered  with  by  competition  or  other  factors.  ***** 
This  method  is  considered  practical  and  is  based  on  an  idea  sim- 
ilar to  taxation."  Kirkman,  in  The  Science  of  Eailways,  vol, 
8,  pp.  42,  43,  writing  from  the  standpoint  of  a  trained  railway 
man,  says: 

''A  prime  factor  in  determining  the  rates  carriers  charge,  is 
the  value  of  the  ser\'ice  to  the  shipper.  This  is  the  basis  of  re- 
muneration for  labor  in  every  field  of  industry.  Any  other 
would  be  oppressive,  if  not  prohibitory.  Its  operation  involves 
the  exercise  of  discrimination.  But  discrimination  is  the  in- 
stinct of  trade,  its  intelligent,  directing  and  governing  force. 
The  ignorant,  the  vicious,  and  the  superficial  speak  of  it,  when 
exercised  by  railroads,  as  something  oppressive,  something  to  be 
discountenanced.  This  is  because  they  do  not  consider  the  an- 
alogies of  trade,  or  its  merits.  The  charge  of  carriers  can  not 
be  disproportionate  to  the  thing  handled.  If  more  is  charged 
than  I  can  reasonably  pay,  it  prohibits  me  from  doing  business; 

«"  174  TJ.  S.  739,  43  L.  Ed.  1154,  19  ^  Int.    Com.    Com.    v.    Chicago    G. 

Sup,  Ct.  804.  W.    E.    Co.,    141    Fed.    1003,    1015. 

*^  Georgia  Peachgrowers '  Asso.  v.  Noyes    Am.    E.    E.    Eates    53,      Int, 

Atlantic   C,   L,   E,   Co.,   10   I,   C.   C.  Com,    Com,    v,    Baltimore    &    O,    E, 

E,  255.  Co.,  43  Fed,  37,  53,  3  I,  C.  E.  192. 


§  53.]  Charges  by  Common  Carriers  105 

but  if  I  am  charged  what  I  can  afford,  I  am  not  treated  imjustly, 
so  long  as  the  general  profits  of  the  seller  are  not  unreasonable. 
It  is  not  an  act  of  injustice  to  me  that  a  carrier  charges  a 
higher  rate  for  my  blooded  horse  than  for  my  neighbor's  mule, 
although  they  both  occupy  the  same  space.  I  can  not  afford 
to  pay  the  same  rate  for  the  brick  used  in  the  construction  of 
my  house  that  I  can  for  the  carpets  that  cover  its  floors.  Rates 
are  based  on  discriminations  of  this  kind,  at  once  practicable, 
necessary,  and  wise." 

This  statement  is  correct  as  stating  a  general  law,  but  the 
law  is  subject  to  many  modifications.  His  illustration  of  the 
blooded  horse  and  the  mule  is  not  a  safe  application  of  the  rule. 
That  a  horse  may  be  worth  ten  or  twenty  times  as  much  as  a 
mule  makes  the  transportation  service  for  moving  the  horse 
more  valuable  than  for  moving  the  mule ;  but  when  the  horse  is 
worth  only  a  little  more  than  the  mule,  it  would  be  impossible 
to  grade  the  relative  rates.  Difference  in  value  on  the  same 
kind  of  commodity  can  rarely  be  practically  applied  in  rate  mak- 
ing. Value  of  service  is  more  a  limitation  on  rates  than  a  rea- 
son for  increasing  rates.  Mere  difference  in  value  or  use  of  a 
commodity  offers  no  reason  for  a  difference  in  rates.  The  com- 
mission has  said :  ^^ 

"It  may  be  fairly  said  in  conclusion  that  the  carriers  in  this 
case  show  no  sufficient  justification  whatsoever  for  discrimina- 
ting between  the  three  kinds  of  fire-clay  brick  involved  in  this 
proceeding.  The  brick  themselves  are  so  nearly  alike  in  color 
that,  being  the  same  size  and  of  the  same  weight,  they  are  prac- 
tically indistinguishable  the  one  from  the  other.  To  make  dif- 
ferent rates  on  each  of  these  brick  is  virtually  to  permit  the 
shipper  to  declare  which  of  the  three  rates  he  chooses  to  impose 
upon  the  freight.  The  receiving  agent  of  the  railroad,  unless 
an  expert  in  fire-clay  brick,  could  not  tell  which  of  the  three  rates 
to  impose  upon  any  one  of  the  three  varities,  except  by  inquiring 
what  use  was  to  be  made  of  these  brick.  Aside  from  the  diffi- 
culty in  learning  what  use  the  brick  were  to  be  put  to  upon 
reaching  their  destination,  we  cannot  regard  a  classification  as 
scientific,  or  a  difference  in  rates  as  well  based,  which  is  alto- 
gether founded  upon  a  distinction  that  has  no  transportation 
significance. 

^  Stowe-Fuller    Co.    v.    Pennsylvania  Co.,  12  I.  C.  C.  E.  215,  220. 


106  Must  be  Reasonable.  [§  54. 

Moreover,  such  a  difierentialion,  if  permitted  and  extended 
throughout  the  various  classes  of  freight  handled  by  railroads, 
would  lead  to  an  almost  endless  multiplication  of  rates,  which 
could  find  no  excuse  save  in  the  use  which  might  be  made  of  the 
article  transported.  One  class  of  lumber  of  the  same  measure- 
ment and  of  the  same  value  and  of  the  same  general  appear- 
ance and  of  the  same  weight  as  another  might  be  given  a  dis- 
tinct and  separate  rate.  And  so  with  building  stone  and  cement 
and  steel  in  certain  forms,  and  many  other  commodities  which 
will  readily  suggest  themselves.  Classification  must  be  based 
upon  a  real  distinction  from  a  transportation  standpoint;  and 
we  can  find  no  such  distinction  between  these  three  classes  of 
brick,  which  are  made  of  the  same  material  and  come  out  of  the 
same  kiln,  as  justifies  a  difference  in  rates.  To  hold  otherwise 
would  be  to  promote  false  billing  on  the  part  of  shippers,  and 
to  require  the  carriers,  if  they  would  avoid  the  penalty  of  the 
laAv,  to  make  a  practically  impossible  examination  into  the  use 
to  which  each  shipment  of  these  brick  was  put." 

AYlien  increased  value  of  a  commodity  increases  the  hazard, 
the  cost  of  service  from  loss  and  damage  may  be  increased  and 
that  fact  might  justify  an  increased  rate.** 

§  54.  Value  of  the  commodity,  its  general  utility  and  danger 
of  loss. — The  commission  in  the  Tift  and  Central  Yellow  Pine 
cases,'''^  as  reasons  for  its  conclusion  that  the  rates  there  imcler 
investigation  were  illegal  and  unreasonable,  said,  "Lumber  is 
an  inexpensive  freight."  "It  is  not  what  is  known  as  perishable 
traffic,  *******  and  in  case  of  accident,  the  damage  is 
insignificant."  "Lumber  is  moreover  an  article  of  general  util- 
ity." Each  of  these  cases  received  the  approval  of  the  Supreme 
Court.*"  The  element  of  value  in  the  commodity  transported 
forms  a  proper  consideration  to  be  taken  into  accoimt  in  the 
establishment  of  a  rate.  The  liability  of  a  carrier  as  an  insurer 
of  freight  against  all  loss,  except  such  as  is  occasioned  by  the 
act  of  God  or  the  public  enemy  is  elementary,  and  the  greater 


^'Kindel   v.    Adams    Express    Co.,  '"So.    Ey.    Co.    t.    Tift,    148    Fed. 

13  I.  C.  C.  K.  475,  485.  1021,  206  U.  S.  428,  51  L.  Ed.  1124, 

^Tift  V.  So.  Ey.  Co.,  10  I.  C.  C.  27  Sup.  Ct.  709;  111.  Cent.  E.  Co.  v. 

E.   548;    Central  Yellow  Pine  Asso.  Int.   Com.   Com.,  206  U.   S.   441,  51 

V.  111.   Cent.  E.  Co.,   10  I.   C.   C.  E.  L.  Ed.  1128,  27  Sup.  Ct.  700. 
505. 


§  55.]  Charges  by  Common  Carriers  107 

the  value  the  greater  the  risk.^'  In  the  Food  Products  Case,'^  it 
was  stated :  ' '  While  rates  should  not  be  so  low  as  to  impose  a 
burden  on  other  traffic,  they  should  have  reasonable  relation  to 
the  cost  of  production,  and  the  value  of  the  transportation  ser- 
vice to  the  producer  and  shipper.  In  the  carriage  of  the  great 
staples  which  supply  an  enormous  business,  and  which  in  market 
value  and  actual  cost  of  transportation,  are  among  the  cheapest 
articles  of  conmierce,  rates  yielding  moderate  profit  are  both 
justifiable  and  necessary. ' '  Iron  should  not  bear  a  rate  equal  to 
the  average  of  all  rates.""  Coal "  and  salt  "  are  low.  grade  traffic 
and  entitled  to  relatively  low  rates. 

§  55.  Competition  or  its  absence  considered  in  determining 
reasonableness  of  rate. — In  the  Central  Yellow  Pine  and  the  Tift 
Cases,*"  the  commission  had  under  coi:jsideration  a  rate  fixed  by 
the  concerted  and  concurrent  action  of  the  carriers  and  there 
said: 

"We  deem  it  luinecessary  to  express  an  opinion  as  to  whether 
this  concert  of  action  in  fixing  the  advanced  rate  amoimts  to  an 
unlawful  agreement  under  the  so-called  "Anti-Trust  Act" — 
the  enforcement  of  that  act  being  a  matter  properly  cognizable 
by  the  courts.  It  is  clearly,  however,  within  the  scope  of  our 
authority  and  duty  to  consider  this  joint  or  concerted  action  of 
the  defendants  in  the  aspect  of  its  bearing  upon  the  reasonable- 
ness and  validity  of  the  advanced  rate,  the  result  of  that  action. 
Where  rates  are  established  by  concert  of  action  and  previous 
understanding  between  the  carriers,  it  is  manifest,  whether  or 
not  there  be  a  binding  agreement  to  maintain  such  rates,  that  the 
element  of  competition  is  eliminated.  Concert  of  action  is  wholly 
inconsistent  with  competition  and,  during  the  time  the  rates  fixed 


3"  Howell  V.    New   York,   L.   E.   &,  ^^  Colorado    Fuel    &    Iron    Co.    v. 

W.  Ey.  Co.,  2  I.  C.  C.  E.  272,  2  I.  So.  Pac.  Co.,  6  I.  C.  C.  E.  488,  515. 
C.  E.  162,  172.     See  also  Int.  Com.  ^'' Denison   Light   &   Power   Co.   v. 

Com.  V.   Chicago  Great  W.   Ey.  Co.,  Mo.,  Kan.  &  Tex.  Ey.  Co.,  10  I.  C. 

141  Fed.  1003,  1015,  and  citations.  C.  E.  337, 

^  Ee  Alleged  Excessive  Eates  on  *^  Anthony    Salt    Co.   v.   Mo.    Pac. 

Food  Products.     4  I.  C.  C.  E.   116,  Ey.  Co.,  5  I.  C.  C.  E.  299,  515,  4  I. 

3  I.  C.  E.  93,  104.     See  also  Mayor  C.  E.  33. 
otc.  of  Wichita  v.  Atchison,  T.  &  S.  ^=10  I.  C.  C.  E.  505,  548. 

V.  Ey.,  9  r.  C.  C.  E.  534,  548;  Farm- 
ers' etc.  Club  V.  A.  T.  &  S.  F.  Ey. 
Co.,  12  I.  C.  C.  E.  317,  360. 


108  ]\IusT  BE  Reasonable,  [§  55. 

by  concert  of  action  are  maintained,  the  effect,  so  far  as  com- 
petition is  concerned,  is  the  same  as  if  there  was  a  binding  agree- 
ment to  maintain  snch  rates. 

''Competition  is  favored  by  law.  The.  object  of  the  pooling 
section  (§5)  of  the  Interstate  Commerce  Act  is  to  prevent  "any 
contract,  agreement,  or  combination"  between  otherwise  compet- 
ing carriers  by  which  competition  between  them  may  be  done 
away  with.  In  East  Tenn.,  Va.  &  Ga.  Railway  Co.  v.  Interstate 
Commerce  Commission,  it  is  said,  "The  Interstate  Commerce 
Law,  it  is  conceded,  was  intended  to  encourage  normal  competi- 
tion. It  forbids  pooling  for  the  very  purpose  of  allowing  com- 
petition to  have  effect."  (99  Fed.  Rep.  61).  The  Supreme 
Court  holds  that  the  suppression  of  competition  is  violative  of  the 
so-called  "Anti-Trust  Act,"  in  that,  such  suppression  restrains 
trade  and  conmierce  bj^  "keeping  rates  and  charges  higher  than 
they  might  otherwise  be  under  the  laws  of  competition."  (Joint 
Traffic  Association  Case,  171  U.  S.  505,  569,  571,  577,  43  L.  Ed. 
287,  288,  290,  19  Sup.  Ct.  Rep.  25:  43  L.  Ed.  259,  1  Fed.  Anti- 
Trust  Doc.  869 ;  U.  S.  V.  Trans-]Missouri  Freight  Association, 
166  U.  S.  341,  41  L.  Ed.  1027,  17  Sup.  Ct.  Rep.  540. 

The  ground  upon  which  competition  is  favored  is  that  it  con- 
duces to  the  reasonableness  of  rates  or  to  the  protection  of  the 
public  from  unreasonably  high  or  excessive  rates.  In  United 
States  V.  Freight  Association,  supra,  the  Supreme  Court  says, 
"competition  will  itself  bring  charges  down  to  what  may  be  rea- 
sonable." (166  U.  S.  339,  41  L.  Ed.  1027,  17  Sup.  Ct.  Rep. 
540).  The  act  to  regulate  commerce  (§  1),  in  prohibiting  im- 
reasonableness  of  rates,  in  effect  forbids  whatever  conduces  to 
such  unreasonableness.  In  any  event,  it  is  incumbent  upon  the 
commission,  when  the  reasonableness  of  rates  is  in  issue  before 
it.  to  consider  how  those  rates  were  brought  about — whether  they 
are  the  product  of  untrameled  competition  or  the  result  of  a 
concert  of  action  or  combination  between  the  carriers  establish- 
ing and  maintaining  them.  The  advanced  rates  complained  of 
cannot  be  claimed  to  be  the  outcome  of  competition  because  "the 
natural,  direct  and  immediate  effect  of  competition  is  to  lower" 
(United  States  v.  Joint  Traffic  Asso.,  171  U.  S.  577,  43  L.  Ed. 
290,  19  Sup.  Ct.  Rep.  25),  rather  than  advance,  rates.  The 
advanced  rates  must  be  presumed  to  be  higher  than  rates  which 
unrestrained  competition  would  produce." 


§  55.]  Charges  by  Common  CxVrriers  109 

This  principle  received  the  approval  of  the  courts."  The  Su- 
preme Court  has  said:  "The  interstate  commerce  law  was  in- 
tended to  promote  trade.""  The  Supreme  Court  in  Int.  Com. 
Com.  V.  Chicago  G.  W.  R.  Co."  has  said : 

"It  must  be  remembered  that  railroads  are  the  private  prop- 
erty of  their  owners;  that  while,  from  the  public  character  of 
the  work  in  which  they  are  engaged,  the  public  has  the  power  to 
prescribe  rules  for  securing  faithful  and  efficient  service  and 
equality  between  shippers  and  communities,  yet,  in  no  proper 
sense,  is  the  public  a  general  manager.  As  said  in  Interstate 
Commerce  Commission  v.  Alabama  IMidland  R.  Co.,  168  U.  S. 
144.  172,  42  L.  Ed.  414,  425,  18  Sup.  Ct.  Rep.  45,  51,  quoting 
from  the  opinion  in  Circuit  Court  of  Appeals,  same  style  case, 
5  Inters.  Com.  Rep.  697,  21  C.  C.  A.  59,  41  U.  S.  App.  466,  74 
Fed.  723: 

"  'Subject  to  the  two  leading  prohibitions  that  their  charges 
shall  not  be  unjust  or  imreasonable,  and  that  they  shall  not  un- 
justly discriminate  so  as  to  give  undue  preference  or  disadvan- 
tage to  persons  or  traffic  similarly  circumstanced,  the  act  to 
regulate  commerce  leaves  common  carriers  as  they  were  at  the 
common  law, — free  to  make  special  rates  looking  to  the  increase 
of  their  business,  to  classify  their  traffic,  to  adjust  and  apportion 
their  rates  so  as  to  meet  the  necessities  of  commerce  and  of  their 
o^\•n  situation  and  relation  to  it,  and  generally  to  manage  their 
important  interests  upon  the  same  principles  which  are  regarded 
as  sound  and  adopted  in  other  trades  and  pursuits.' 

"It  follows  that  railroad  companies  may  contract  with  ship- 
pers for  a  single  transportation  or  for  successive  transportations, 
subject  though  it  may  be  to  a  change  of  rates  in  the  manner  pro- 
vided in  the  interstate  conunerce  act  (Armour  Packing  Co.  v. 
United  States,  209  U.  S.  56,  52  L.  Ed.  681,  28  Sup.  Ct.  Rep.  428), 
and  also  that,  in  fixing  their  own  rates,  they  may  take  into  ac- 
count competition  with  other  carriers,  provided  only  that  the 
competition  is  genuine,  and  not  a  pretense  (Interstate  Commerce 
Commission  v.  Baltimore  &  0.  R.  Co.  145  U.  S.  263,  36  L.  Ed. 
699,  4  Inters.  Com.  Rep.  92,  12  Sup.  Ct.  Rep.  844;  Texas  &  P. 

'^Tift   V.    So.    Ey.    Co.,   138    Fed.  "Louisville  &  N.   R.  Co.  v.  Behl- 

75.3;   111.   Cent.   R.  Co.  v.  Int.  Com.       mer,  17-5  U.  S.  648,  44  L.  Ed.  309, 
Com.,  206  U.  S.  441,  51  L.  Ed.  1128,       20   Sup.   Ct.  209. 
27  Sup.  Ct.  700.  «209  U.   S.   108,   119,  120,  52  L, 

Ed.  705,  712,  713,  28  Sup.  Ct, 


no  Must  be  Reasonable.  [§  55, 

R.  Co.  V.  Interstate  Commerce  Commission,  162  U.  S.  197,  40 
L.  Ed.  940,  5  Inters.  Com.  Rep.  405,  16  Sup.  Ct.  Rep.  666;  In- 
terstate Commerce  Commission  v.  Alabama  Midland  R.  Co. 
supra ;  Louisville  &  N.  R.  Co.  v.  Behlmer,  175  IT.  S.  648,  44  L. 
Ed.  309,  20  Sup.  Ct.  Rep.  209;  East  Tenn.,  V.  &  G.  R.  Co.  v. 
Interstate  Commerce  Commission,  181  U.  S.  1,  45  L.  Ed.  719, 
21  Sup.  Ct.  Rep.  516;  Interstate  Commerce  Commission  v. 
Louisville  &  N.  R.  Co.,  190  U.  S.  273,  47  L.  Ed.  1047,  23  Sup. 
Ct.  Rep.  687). 

"It  must  also  be  remembered  that  there  is  no  presumption 
of  Avrong  arising  from  a  change  of  rate  by  a  carrier.  The  pre- 
sumption of  honest  intent  and  right  conduct  attends  the  action 
of  carriers  as  well  as  it  does  the  action  of  other  corporations  or 
individuals  in  their  transactions  in  life.  Undoubtedly,  when 
rates  are  changed,  the  carrier  making  the  change  must,  when 
properly  called  upon,  be  able  to  give  a  good  reason  therefor; 
but  the  mere  fact  that  a  rate  has  been  raised  carries  with  it  no 
presumption  that  it  was  not  rightfully  done.  Those  presump- 
tions of  good  faith  and  integrity  which  have  been  recognized  for 
ages  as  attending  human  action  have  not  been  overthroAvn  by 
any  legislation  in  respect  to  common  carriers." 

It  is  evident  "that  there  is  no  presumption  of  wrong"  when 
a  carrier  "takes  into  account  competition  with  other  carriers" 
and  without  an  illegal  combination  between  it  and  other  carriers 
makes  an  advance  in  its  rates,  for  as  said  by  the  court  in  the 
course  of  the  same  opinion,  "Competition  eliminates  from  the 
case  an  intent  to  do  an  unlawful  act."  But  when  an  advance  is 
made  as  a  result  of  a  combination  that  is  illegal,  there  can  be 
no  presumption  that  the  act  of  making  the  advance  was  in  good 
faith  and  the  carrier  should  not  only  show  "a  good  reason  there- 
for," but  the  rate  so  advanced  is  presumptively  illegal,  and  the 
carrier  should  be  required  to  clearly  show  that  it  is  not  un- 
reasonable. Judge  Speer,  with  that  ability  and  clearness  that 
usually  mark  his  opinions,  and  speaking  of  the  case  of  Tift  v. 
So.  Ry.  Co.,  supra,  states  the  rule  correctly  as  follows: " 

"The  commission  concludes  that  it  is  its  duty  to  consider  this 
joint,  or  concert  of,  action  of  the  defendants  as  bearing  upon 


"Tift   V.    So.    Ey.    Co.,   138   Fed.      TT.  S.  428,  51  L,  Ed.  1124,  27  Sup. 
753,   761,   762,   763.     Affirmed.      So.       Ct.   709. 
Bj.  Co.  V.  Tift,  148  Fed.  1021,  206 


§  55.]  Charges  by  Common  Carriers  111 

the  reasonableness  and  validity  of  the  advanced  rate  which  re- 
sults. It  holds  that  the.  element  of  competition  is  eliminated. 
In  the  absence  of  legitimate  competition,  destroyed,  as  we  shall 
presently  see,  by  methods  obviously  illegal,  the  commission  pre- 
sumes that  the  advance  rates  are  higher  than  legitimate  compe- 
tition would  produce.  In  other  words,  the  marked  increase  of 
charges  for  transportation  of  that  commodity  which,  save  one 
other,  affords  the  largest  tonnage  of  freight  to  the  respondent 
roads,  did  not  originate  from  a  normal  or  reasonable  exigency  of 
the  respondents'  business.  On  the  contrary,  it  was  an  arbitrary 
exaction,  imposed  by  a  combination  of  railroad  agents  made  in 
restraint  of  the  natural  movement  of  the  produce  in  the  lum- 
ber trade.  This  combination  or  concert  of  action  on  the  part  of 
the  respondent  railroads  is  plainly  violative  of  that  provision 
of  the  interstate  commerce  law  which  forbids  pooling.  This  was 
enacted,  among  other  things,  for  the  purpose  of  securing  com- 
petition. Pooling  may  be  as  well  effected  by  a  concert  in  fixing 
in  advance  the  rates  which  in  the  aggregate  would  accumulate 
the  earnings  of  naturally  competing  lines,  as  by  depositing  all 
of  such  earnings  to  a  common  account  and  distributing  them 
afterwards.  That  such  an  association  and  concert  of  action  be- 
tween agents  of  naturally  competing  lines  is  destructive  of  com- 
petition is  equally  unanswerable.  To  entertain  any  other  view 
is  to  ignore  reiterated  decisions  of  the  Supreme  Court  of  the 
United  States  and  many  rulings  of  the  circuit*  courts  and  the 
state  courts.  Perhaps  the  leading  cases  on  this  subject  are 
United  States  v.  Freight  Association,  166  U.  S.  341,  17  Sup. 
Ct.  540,  41  L.  Ed.  1007 ;  Joint  Traffic  Association  Case,  171  U. 
S.  505,  19  Sup.  Ct.  25,  43  L.  Ed.  259.  In  the  first  case  the 
court  had  under  consideration  the  legality  of  the  Trans-Missouri 
Freight  Association.  The  agreement  of  that  body  may  differ 
in  form,  but  its  substantial  purpose  was  the  same  as  that  of  the 
Southeastern  Freight  Association.  It  avowedly  was  the  "mu- 
tual protection  of  the  railroads  by  establishing  and  maintaining 
reasonable  rates,  rules  and  regulations  on  all  freight  traffic,  both 
through  and  local."  After  argument  by  many  of  the  most 
eminent  counsel  in  the  country,  and  after  exhaustive  considera- 
tion, the  court  held  that  the  anti-trust  law  prohil)iting  con- 
tracts, combinations,  and  conspiracies  in  restraint  of  trade  or 
commerce  among  the  several  states  or  with  foreign  countries 
ppply  to  and  cover  common  carders  hy  railroad,  and  a  contract 


112  ]\rusT  BE  Reasonable.  [§  55. 

between  them  in  restraint  of  such  trade  or  commerce  is  pro- 
hibited even  though  the  contract  is  entered  into  between  com- 
peting railroads  only  for  the  purpose  of  thereby  effecting  traf- 
fic rates  for  the  transportation  of  persons  and  property.  It 
was  further  held  that,  in  order  to  maintain  such  a  contention  the 
complainant  is  not  obliged  to  show  that  the  agreement  in  ques- 
tion was  entered  into  for  the  purpose  of  restraining  trade  or 
commerce  if  such  restraint  is  the  necessarj^  effect,  and  con- 
cludes that  the  anti-trust  act  applies  to  railroads,  and  that  it 
renders  illegal  all  agreements  which  are  in  restraint  of  trade  or 
commerce.  The  court  then  proceeds  to  declare  that  the  agree- 
ment of  the  association  does  in  fact  constitute  such  a  restraint  in 
violation  of  law.  It  is  proper  to  state  that  four  judges,  three  of 
whom  are  not  now  on  the  bench  of  the  court,  dissented  from 
this  conclusion ;  but  the  opinion  of  the  majority  is,  of  course, 
controlling.  In  the  subsequent  case  of  the  United  States  v.  Joint 
Traffic  Association,  171  U.  S.  505,  19  Sup.  Ct.  25,  43  L.  Ed.  259, 
the  court,  after  full  consideration,  reaffirmed  its  holding  in  the 
Trans-Missouri  Case.  It  further  declares  that  Congress,  with 
regard  to  interstate  commerce,  and  in  the  course  of  regulating 
it  in  the  case  of  railway  corporations,  has  power  to  say  that  no 
contract  or  combination  shall  be  legal  which  shall  restrain  trade 
and  coimnerce  by  shutting  out  the  operation  of  the  general  law 
of  competition.  The  tremendous  significance  of  these  findings 
is  shown  by  the  multitude  of  cases  in  which  the  doctrines  an- 
nounced have  been  utilized  and  reaffirmed.  See  Rose's  Notes  on 
U.  S.  Reports,  vol.  12,  p.  958  et.  seq. ;  also  supplement  to  same 
publication,  vol.  3,  p.  795.  Perhaps  the  most  noted  case  on  this 
subject  is  that  of  the  Northern  Securities  Company  v.  United 
States.  193  U.  S.  197,  24  Sup.  Ct.  436,  48  L.  Ed.  679.  There  it 
was  held  that  a  contract  by  which  a  majority  of  stock  of  two 
companies  who  OAMied  parallel  interstate  railroads  is  transferred 
to  a  corporation  organized  for  the  purpose  of  holding  and  vot- 
ing the  same  and  receiving  dividends  and  dividing  the  same  pro 
rata  among  the  stockholders  of  the  two  companies,  violates  the 
anti-trust  law.  Such  is  the  superabundance  of  authority  upon 
this  subject  that  further  citation  would  be  superfluous.  It  may 
be  pardonable  to  recall  that  one  of  the  pioneer  cases  on  this  im- 
portant topic  was  that  of  Rowena  Clarke  v.  Central  R.  R.  & 
Banking  Company  of  Georgia  (C.  C.)  50  Fed.  338,  15  L.  R. 
A.  683  et.  seq.,  heard  in  this  (^strict.    The  case  was  decided  ii^ 


§  55.]  Charges  by  Common  Carriers  113 

1892.     Commenting  upon  similar  conditions,  it  was  there  ob- 
served : 

"  'It  is  not  difficult  to  perceive  that  a  combination  of  corpora- 
tions which  produces  a  condition  so  inequitable  cannot  be  sanc- 
tioned by  the  law.  "We  believe  that  transactions  of  this  char- 
acter are  within  the  spirit,  if  not  within  the  letter,  of  the  act 
of  Congress  Imown  as  the  "Sherman  Anti-Trust  Law"  (Act 
July  2,  1890,  c.  647,  26  Stat.  209  (U.  S.  Comp.  St.  1901,  p. 
3200).  It  is  certainly,  as  we  have  seen,  obnoxious  to  the  law  of 
Georgia,  and  it  was  certainly  as  obnoxious  to  the  common  law." 

"This  decision  was  made  13  years  ago.  The  principles  then 
announced,  which  were  challenged  in  many  influential  quarters, 
are  now  imbedded  in  the  country 's  jurisprudence  and  in  the  leg- 
islation of  the  national  Congress.  It  was  insisted  with  great 
earnestness  by  the  learned  special  counsel  for  the  respondents 
that  because  the  various  members  of  the  association  expressly 
stipulated  in  the  articles  of  organization  that  each  and  all 
members  could  at  will  and  at  any  time  withdraw  from  the 
agreement  to  fix  rates,  it  was  not  a  combination  in  restrint  of 
trade.  This  view  seems  wholly  untenable.  That  is  merely  a 
recitation  of  a  privilege  which  any  party  to  an  unlawful  enter- 
prise inherently  enjoys.  Confederates  or  conspirators  who  unite 
to  do  an  unlawful  act  or  to  do  a  lawful  act  in  an  unlawful  way 
may  jointly  or  severally  abandon  the  project.  The  law  affords 
them  the  locus  poenitentiae.  If,  however,  the  object  of  the  con- 
spiracy is  accomplished,  its  character  is  not  to  be  determined 
in  view  of  the  consideration  that  the  conspirators  might  have 
repented,  but  with  an  eye  single  to  the  fact  that  they  did  not 
repent.  Besides,  it  is  indisputable  that  the  agreements  of  the 
association  were  made  to  be  kept,  and  not  to  be  broken.  Good 
faith  between  the  members,  not  to  mention  a  powerful  compul- 
sory force  behind  them,  obliged  that  the  agreements  be  kept,  and 
the  fact  is,  as  the  commission  finds,  they  were  kept." 

It  is  true  that  the  commission  has  no  authority  to  execute  the 
Sherman  Anti-Trust  Law  and  cannot  penalize  carriers  who 
may  violate  it,  but  the  commission  can  and  should,  when  con- 
sidering the  difficult  question  of  what  is  a  reasonable  rate,  look 
to  the  causes  that  produced  the  rate  and  the  method  adopted  in 
putting  it  in  effect.  Congress  has  been  repeatedly  importuned 
to  permit  interstate!  carriers  to  combine,  and  has  so  far  refused 
to  amend  the  Sherman  Anti-Trust  Law  in  that  respect.     That 


114  ]\riisT  BE  Reasonable.  [§  55. 

the  law  applies  to  carriers,  and  that  any  contract  or  combina- 
tion in  restraint  of  trade  between  the  states  violates  the  act 
has  been  detinitely  settled  in  the  Trans-^NIissonri  Freight  and 
Joint  Traffic  Association  Cases  cited,  supra,  in  the  opinion  of 
Judge  Speer.  AVhether  or  not  Congress  should  amend  the 
Sherman  Anti-Tmst  Act  presents  a  question  not  within  the 
scope  of  this  discussion.  It  is  probably  true  that  freight  associa- 
tions are  necessary  to  the  proper  conduct  of  the  great  business 
of  carriers,  and  that  there  should  be  some  modification  of  the 
law  with  reference  to  such  associations.  Such  modifications,  if 
made,  should  protect  the  interests  of  the  public  as  well  ais  that 
of  the  carriers,  and  rates  made  by  such  associations  should,  in 
some  manner,  be  investigated  and  foimd  reasonable  before  be- 
coming effective.  Of  course,  if  a  rate  is  reasonable,  although 
made  as  the  result  of  concert  of  action,  it  cannot,  for  that  rea- 
son alone,  be  condemned  by  the  commission.*^  Mr.  Commissioner 
Prouty,  in  Re  Class  and  Commodity  Rates  from  St.  Louis  to 
Texas  Common  Points.  11  I.  C.  C.  R.  238,  269,  270.  discusses  this 
question  as  follows : 

"The  theory  of  this  country  in  respect  to  interstate  rates  in 
the  past  has  apparently  been  that  competition  between  various 
railroads  would,  if  it  could  be  secured,  produce  reasonable 
freight  rates  in  the  same  way  that  competition  tends  to  produce 
a  reasonable  price  of  commodities  in  general.  This  was  the  idea 
expressed  in  the  enactment  of  the  5th  section  of  the  act  to  regu- 
late commerce  in  1887  which  prohibits  pooling.  It  was  also  the 
purpose  of  the  Sherman  Anti-Trust  Act  of  1890  which  forbids 
all  agreements  in  restraint  of  interstate  commerce,  and  as  in- 
terpreted by  the  Supreme  Court  of  the  United  States,  all  agree- 
ments between  carriers  as  to  the  rate  of  freight  applied  to  in- 
terstate shipments.  The  idea  has  received  the  sanction  of  ju- 
dicial interpretation  and  the  approval  of  judicial  dicta.  It  is 
impossible  to  read  the  utterances  of  the  Supreme  Court  in  the 
Trans-Missouri  Case  and  the  Joint  Traffic  Association  Case  with- 
out the  conviction  that  a  majority  of  that  tribunal  were  of  the 
opinion  not  onty  that  competition  could  be  relied  upon  to  regu- 


*"  China  &   Japan   Trading   Co.  v.  R.     451,     456 ;     Board     of     Bristol, 

Ga.  R.  Co.,  12  I.  C.  C.  E.  236,  241,  Tenn.,  v.  Virginia  &  S.  W.  Ry.  Co., 

and    cases   there   cited.      Enterprise  15  I.  C.  C.  E.  453. 
Mfg.  Co.  V.  Ga.  E.  Co.,  12  I.  C.  C. 


§  55.]  Charges  by  Common  Carriers  115 

late  freight  rates  but  that  it  was  the  safest  and  best  means  to 
that  end. 

''We  think,  therefore,  that  it  must  be  held  upon  this  record 
that  these  rates  which  were  in  force  previous  to  IMarch  15,  1903, 
were  sufficiently  high.  We  further  think  that  in  a  case  like  this, 
where  the  former  rates  have  been  long  in  effect,  and  where  the 
advance  has  been  made  by  concerted  action  the  justification 
should  be  clear." 

Competition  never  raises  rates,  and,  therefore,  the  effect  of 
competition  on  the  question  of  what  is  a  reasonable  rate  has 
not  been  frequently  considered.  The  effect  of  competition  is 
important,  as  will  be  seen  in  chapter  three  post  when  the  com- 
mission or  the  courts  are  called  upon  to  determine  whether  or 
not  a  particular  rate  is  discriminatory.  In  comparisons  a  rate 
created  by  competition  may  be  considered  reasonably  low,  and 
frequently  the  commission  has  refused  to  reduce  a  noncom- 
petitive rate  to  a  ton  mile  basis  equal  to  that  of  a  highly  competi- 
tive rate.  This  is  just  to  the  carriers  because  competition,  espe- 
cially water  or  market  competition,  will  force  a  carrier  to  trans- 
port to  a  particular  point  at  a  very  small  margin  of  profit.  The 
carrier  is  permitted  to  meet  competition,  provided  that  in  doing 
so,  it  does  not  transport  at  a  loss.  Market  competition  fre- 
quently may  require  a  carrier  to  transport  goods  a  long  distance 
at  a  comparatively  low  rate.  So  long  as  any  profit  is  made  by 
such  transportation,  it  benefits  not  only  the  carrier  but  all  ship- 
pers that  such  transportation  should  be  accepted.  And  it  would 
be  unjust  to  the  carrier  to  make  this  kind  of  traffic  a  basis  for 
all  rates.    Kirkman,  speaking  of  this  kind  of  competition,  says :  " 

"Competition  is  a  potent  factor  in  determining  rates,  and  is 
general  in  the  case  of  railroads.  Thus  the  facility  and  cheap- 
ness with  which  wheat  may  be  moved  from  India  to  Liverpool 
affect  the  rate  on  wheat  in  every  quarter  of  the  globe.  They  also 
affect  the  rates  on  substitutes  therefor,  such  as  rye,  barley,  and 
so  on.  In  so  far  as  this  is  so,  it  is  apparent  that  competition 
is  only  partially  dependent  upon  the  presence  of  neighboring 
lines  or  otlicr  local  influences.  Local  competition,  while  valuable, 
is  not  enough  to  enforce  equitable  conditions.  It  must  be  sup- 
plemented by  the  competitive  markets  of  the  world,  including 
the  diversified  carriage  of  mankind  by  land  and  water.     Rich- 

*"  Science  of  Railways,  vol.  8,  pp.  8  and  9. 


116  MrsT  BK  Reasonable.  [§  55. 

ness  of  soil,  facilities  of  production,  the  price  of  labor  and  rates 
of  local  carriers  from  points  of  production  to  places  of  general 
consumption  influence  the  charges  of  other  carriers  in  every 
quarter  of  the  globe.  It  is  no  exaggeration  to  say  that  sources 
of  competition  among  carriers  are  as  numerous  as  the  divergent 
interests  of  trade.  Because  of  this  they  are  self-regulative. 
Their  errors  of  judgment  and  sins  of  omission  and  commission 
are  self-corrective. ' ' 

This  quotation  would  not  be  accurate  if  applied  to  competi- 
tion generally;  it  does  correctly  describe  market  competition. 
Water  competition,  where  it  exists,  affects  rates  in  a  way  similar 
to  that  of  market  competition.  The  carriers  have  suppressed 
water  competition  in  some  cases  and  use  it  in  others  to  defend 
some  particular  practice.  This  competition  is  discussed  by  ]Mr. 
Commissioner  Prouty  as  follows :  ^° 

"Without  doubt  water  competition  is  made  to  do  most  heroic 
service  in  many  portions  of  the  United  States  in  justifying 
anomalies  in  the  freight  rate,  but  we  are  constrained  to  be- 
lieve that  this  competition  between  the  Atlantic  and  Pacific 
Oceans  is  not  a  thing  of  the  imagination,  but  r^ither  of  intense 
reality  with  which  these  rail  carriers  must  deal. 

"When  the  rail  lines  first  reached  the  Pacific  Coast  all  mer- 
chandise was  brought  in  by  water;  at  the  end  of  several  years 
the  greater  portion  of  it  still  came  bj^  that  means.  AA^hile  both 
the  tonnage  and  the  proportion  have  been  largely  reduced  since, 
there  has  been  no  time  when  the  ocean  was  not  an  important 
factor  in  determining  the  rate  from  New  York  to  San  Francisco. 
Nothing  gives  stronger  evidence  of  the  present  vitality  of  that 
competition  than  the  fact  that  men  familiar  with  the  situation 
have  been  to  an  enormous  expense  in  providing  tonnage  for  this 
service  which  is  more  than  three  times  the  amomit  carried  in 
recent  years.  From  the  day  the  transcontinental  railroad 
touched  the  Pacific  Ocean  its  struggle  has  been  to  divert  busi- 
ness from  sail  to  rail;  and  with  steamships  already  in  service 
and  the  canal  in  immediate  prospect  it  is  certain  that  this 
struggle  has  not  ended. 

"In  1869,  when  the  Central  Pacific  and  Union  Pacific  began 
business,  goods  used  in  California  were  mainly  manufactured 

"Business  Men's  League  of  St.  Ey.  Co.,  9  I.  C.  C.  E.  318,  359,  ;360. 
Louis  V.   Atchison,   Topeka  &  S.  F. 


§  56.]  Charges  by  Common  Carriers  117 

upon  the  Atlantic  seaboard.  In  order  to  secure  the  transporta- 
tion of  these  goods  the  rail  lines  found  it  necessary  to  make  a 
rate,  not  as  low  in  cents  per  hundred  pounds,  but  of  as  great 
value,  all  things  considered,  as  the  water  rate.  Most  rates  be- 
tween New  York  and  San  Francisco  have  ever  since  been  and 
still  are  established  on  this  basis.  It  is  idle  to  say  that  when 
wrought  iron  pipe,  for  instance,  can  be  transported  from  coast 
to  coast  by  water  for  35  cents  per  hundred  pounds,  rail  carriers 
can  maintain  a  carload  rate  much  above  the  75  cents  now  in 
force." 

Rail  competition  has  been  practically  extinguished  in  so  far 
as  it  affects  rates.''"  There  is  a  carrier  competition  in  service. 
This  competition  Kirkman  described  as  follows:"  "Competi- 
tion between  local  carriers  is  beneficial  in  many  ways  aside  from 
its  effect  and  uses.  It  insures  better  facilities,  superior  ware- 
houses, yards  and  grounds,  adequate  equipment  and  suitable 
pro\asion  for  the  convenience,  safety  and  comfort  of  the  travel- 
ing public." 

§  56.  Rates  affected  by  amomit  of  tonnage. — The  commission 
has  expressed  this  principle  in  clear  language.  "The  business 
of  the  defendants  (the  carriers),  not  only  in  lumber,  but  in 
traffic  in  general,  has  gro^^oi  and  is  growing  largely,  and  in  view 
of  the  fact,  that  they  derive  their  franchises,  or  right  to  exist, 
from  the  public,  the  lumber  shippers  as  part  of  the  public  might 
plausibly,  to  say  the  least,  claim  that  they  have  a  right  to  par- 
ticipate in  the  prosperity  of  the  defendants  by  having  their 
rates  reduced  rather  than  advanced.  The  general  rule  is,  the 
greater  the  tonnage  of  an  article  transported,  the  lower  should  be 
the  rate.  No  rule  is  more  firmly  grounded  in  reason  or  more 
universally  recognized  by  carriers.  It  is  because  of  the  greater 
density  of  traffic  north  of  the  Ohio  River  in  Central  Freight 
Association  territory  and  in  the  eastern  territory^  that  rates  in 
general  are  made  materially  lower  in  those  territories  than  in 
the  southern  territory.'^  This  principle  is  stated  by  ]Mr.  Com- 
missioner Clements,  in  Farrar  v.  So.  Ry.  Co.,  11  I.  C.  C.  R.  632, 
637,  where  he  says : 


^^'Tift    Y.    So.    Ey.    Co.,    1.38    Fed.  ==  Tift  v.  So.  Ey.  Co.,  10  I.  C.  C. 

7.53.  R.  548,  583. 

"  Science  of  Railways,  vol.  8,  pp. 
10,  11. 


118  Must  be  Reasonable.  [§  56. 

"In  regions  of  lumber  supply  the  amount  of  this  class  of 
freight  offered  for  transportation  is  very  large  and  the  ship- 
ments continuous  and  regular.  The  tonnage  is  of  vast  im- 
portance to  the  carriers,  affording  them  a  principal  source  of 
revenue.  The  immense  volume  alone  of  traffic  is  an  argument 
for  not  only  reasonable  but  comparatively  low  rates,  and  these 
in  turn  are  necessary  to  the  exploitation  of  the  lumber  industry 
in  new  fields  that  partakes  of  the  character  of  pioneer  develop- 
ment. ' ' 

A  clearer  discussion  of  the  question  can  not  be  given  than  by 
quoting  INIr.  Commissioner  Prouty,  who  says :  '^ 

"It  is  well  understood  that  freight  rates  should  decline  as  a 
coimtrj^  developes  and  as  business,  therefore  increases.  Rates 
are  and  have  been  lower  in  the  very  densely  populated  portions 
of  our  coimtry  than  in  those  parts  where  population  is  less 
dense;  and  this  is  because  with  the  increase  of  traffic  comes  in- 
creased profit  from  the  handling  of  that  traffic.  Now  there  is 
no  portion  of  the  United  States  which  in  the  last  fifteen  years 
has  increased  to  a  more  marked  degree  in  population,  there  are 
few  sections  of  our  country  in  which  greater  development  has 
occurred  than  here.  "Within  that  time  a  great  volume  of  export 
business  has  been  directed  over  the  lines  of  these  respondents  to 
Galveston  and  importations  have  begun  to  flow  through  that 
port.  The  increase  in  tonnage  has  been  enormous  and  we  have 
noted  the  economies  which  have  been  introduced  into  the  hand- 
ling of  that  tonnage. 

"It  was  urged  that  the  improvements  required  for  these  econ- 
omies, the  reduction  of  grades,  the  laying  of  heavier  rail,  the 
purchase  of  modern  equipment,  had  necessitated  vast  outlays 
of  money  and  that  this  was  a  valid  reason  for  the  advance  in 
rates.  Undoubtedly  the  making  of  these  improvements  has  re- 
quired the  expenditure  of  large  sums;  in  many  cases  it  has 
amounted  to  a  virtual  reconstruction  of  the  railroad  and  to  a 
practical  change  of  its  equipment.  This  added  expenditure 
must  be  considered  in  determining  the  reasonableness  of  these 
rates,  but  does  not  justify  an  advance  in  rates.  "\Yhat  has  been 
the  purpose  of  these  improvements?  Certainly  to  decrease  the 
cost  of  operation,  to  handle  freight  and  passengers  at  less  ex- 

"  Be  Clags  and  Commodity  Eates  from  St.  Louis  to  Texas  Common 
Points,  11  I.  C.  C.  R.  238,  273,  274. 


§  57.]  Charges  by  Common  Carriers  119 

pense  than  tliey  could  be  handled  in  the  former  way.  It  is  a 
strange  logic  which  imposes  npon  the  public  a  higher  rate  while 
insuring  to  the  carrier  a  lower  cost  of  operation.  The  actual 
making  of  these  improvements  may  have  added  not  only  to  the 
expense  of  operation  but  may  have  detracted  from  the  efficiency 
of  operation.  The  prosecution  of  the  necessary  work  has  inter- 
fered with  the  movement  of  traffic  and  thereby  added  to  the 
cost  of  this  movement.  But  all  this  is  temporary  and  com- 
paratively insignificant  and  should  not  be  made  an  excuse  for 
a  permanent  advance  in  rates. 

"It  is  urged  that  the  increased  volume  of  traffic  has  necessi- 
tated these  outlays;  that  otherwise  the  business  could  not  be 
handled.  And  that  is  probably  true;  but  increase  of  traffic, 
while  it  may  produce  temporary  embarrassment,  should  reduce, 
not  advance,  rates." 

The  rule  is  reasonable  and  just,  but  may  not  be  applied  too 
far.  A  traffic  official  of  one  of  the  defendants  in  the  case  of 
A.  P.  Morgan  Grain  Co.  v.  Atlantic  Coast  Line  R.  Co.,  not  yet 
decided  by  the  commission,  testified  that  the  amount  of  traffic 
offered  in  1907  was  so  large  as  to  pass  the  "economic  maximum," 
and,  therefore,  the  carriers  not  having  sufficient  equipment,  the 
cost  of  handling  the  traffic  was  relatively  higher  than  if  less 
traffic  had  been  offered.  This  may  be  true,  and  when  true,  while 
furnishing  no  reason  why  the  carrier  should  increase  rates  based 
upon  its  inability  to  economically  meet  its  obligations  to  the 
shippers,  it  would  not  be  just  to  require  the  application  of  the 
rule  that  the  greater  the  traffic  the  less  relatively  should  be  the 
rate.  Though  if  the  condition  of  more  traffic  than  could  be 
economically  handled  should  be  a  permanent  one,  it  would  be 
the  duty  of  the  carrier  to  provide  adequate  facilities  therefor. 
The  effect  of  "this  added  expenditure"  is  discussed  in  the  quo- 
tation supra  from  the  opinion  of  IMr.  Commissioner  Prouty. 

§  57.  Distance  and  rate  per  ton  mile. — Judge  Cooley,  then 
chairman  of  the  commission,  in  a  head  note  states  this  rule:''' 
"As  a  rule  in  the  transportation  of  freight  by  railroads,  while 
the  aggregate  charge  is  continually  increasing  the  further  the 
freight  is  carried,  the  rate  per  ton  mile  is  constantly  growing 
less  all  the  time,  making  the  aggregate  charge  less  in  propor- 


"Farrar    v.    East    Tcnn.,    Va.    &       Ca.  Ky.  Co.,  1  T.  C.  C.  R.  480,  1  I. 
C.  R.  764. 


120  Mr:sT  be  Reasonable.  [§  58. 

tion  every  hundred  miles  after  the  first,  arising  out  of  the 
character  and  nature  of  the  service  performed  and  the  cost  of 
the  service ;  and  thus  staple  commodities  and  merchandise  are 
enahled  to  bear  the  charges  of  this  mode  of  transportation  from 
and  to  the  most  distant  portions  of  the  country."  Judge  Cooley 
also  points  out  that  this  rule  is  not  only  not  abrogated  but  is 
sanctioned  by  the  act  to  regulate  commerce.  The  general  rule 
has  been  applied  by  the  commission  in  other  cases.'^  The  rule  is, 
however,  subject  to  exceptions,''"  and  when  comparing  rates, 
"the  rate  per  ton  mile  is  not  always  the  measure  of  a  reasonable 
rate,  and,  rightly  applied,  would  make  distance  alone  the  gauge 
for  transportation  charges,  but  it  is  always  valuable  as  affording 
a  basis  of  comparison  for  relative  rate  burdens."  ]\Ir.  Com- 
missioner Prouty  says,  "The  rate  per  ton  mile,  while  often  in- 
structive, is  not  by  any  means  a  fair  index  of  a  reasonable 
rate. ' '  °^  While  the  rate  per  ton  mile  should,  and  usually  does, 
decrease  as  distance  increases,  the  rate  per  ton  mile  on  one  road 
is  not  necessarily  a  safe  guide  in  fixing  a  rate  on  another  road 
operating  under  different  conditions. 

§  58.  General  business  conditions. — How  far  may  rates  be  af- 
fected by  the  business  situation  of  the  coimtry  and  the  shippers 
has  been  the  subject  of  consideration  in  several  cases.  It  will 
be  admitted  that  the  fact,  when  such  fact  exists,  that  a  shipper 
has  a  ready  market  for  his  goods  at  a  good  price,  affects  the 
value  of  the  service  to  the  shipper  and  may  be  considered  in 
determining  what,  in  a  particular  case,  is  a  reasonable  rate.  It 
is  also  true  that  prosperous  times  may  and  generally  do  in- 
crease the  price  of  both  labor  and  equipment  necessary  for  the 
carrier  to  operate,  thus  affecting  "the  cost  of  service,"  and  con- 
sequently furnishing  a  fact  that  is  an  element  among  the  many 
considerations  entering  into  a  determination  of  what  is  the 
proper  rate  to  be  charged  for  transportation.  But  the  mere 
fact  of  general  prosperity,  or  of  general  depression,  will  not 

■"Business    Men's    Asso.    v.    Chi-  '^"Manufacturers'     and     Jobbers' 

cago,   St.  P.,  M.  &  O.   E.  Co.,   2  I.  Union  v.  Minneapolis  &  St.  L.  Ry. 

C.  C.  E.  52,  2  I.  C.  E.  41;  Business  Co.,  4  I.  C.  C.  E.  79,  3  I.  C.  R.  115. 

Men's   Asso.    v.    Chicago    &    N.    W.  =*' Farrar  v.  So.  Ey.  Co.,   11  I.  C. 

Ry.  Co.,  2  I.  C.  C.  E.  73,  2  I.  C.  E.  C.  R.  640,  649. 

48,  52 ;   Gustin  v.  Atchison,  T.  &  S.  °^  Re       Proposed       Advances       in 

F.  Ey.  Co.,  8  I.  C.  C.  E.  277,  288.  Freight   Bates,   9    I.    C.    C.   E.   383, 

396. 


§  58.]  Charges  by  Common  Carriers  121 

justify  a  carrier  in  absorbing  the  one  or  shifting  the  other  on 
the  shipper.  "Transportation  by  rail  is  a  service  of  a  quasi 
public  nature,  not  to  be  sold  to  the  highest  bidder,  nor  subject 
to  the  law  of  supply  and  demand."^"  "The  claim"  that  the 
carriers  may  absorb  all  or  part  of  the  prosperity  of  the  shipper 
says  Mr.  Commissioner  Clements  "is  based  upon  the  erroneous 
assumption,  so  prevalent  among  traffic  managers,  that  a  rate 
may  be  made  as  high  as  'the  traffic  will  bear.'  " ""  When  rates 
have  been  reduced  because  it  was  necessary  to  meet  conditions 
caused  by  depressed  financial  conditions,  such  rates  may  be  ad- 
vanced in  prosperous  times  to  the  point  where  they  are  reason- 
able. Mr.  Commissioner  Prouty,  in  the  able  discussion  of  the 
principles  of  rate  making  already  quoted  from,  says:"' 

"No  reduction  in  these  rates  has  been  made  in  the  past  for 
the  purpose  of  stimulating  the  movement  of  this  traffic.  The 
amount  of  these  advances  is  so  slight  as  compared  with  the 
selling  price  of  the  article  transported  that  they  produce  no  ef- 
fect whatever  upon  the  volume  of  the  traffic.  Now  with  respect 
to  a  rate  of  this  kind  we  do  not  think  an  increase  in  the  price 
of  the  article  transported  justifies  of  itself  an  increase  in  the 
freight  rate.  These  rates  were  not  reduced  when  the  prices 
fell;  why  should  they  be  advanced  when  prices  rise?  An  in- 
cident wdiich  occurred  in  this  very  case  strongly  emphasizes 
the  absurdity  of  the  claim. 

' '  Cotton  is  an  important  item  of  traffic  upon  the  International 
&  Great  Northern  Eailroad,  one  of  these  respondents.  It  is 
well  known  that  the  ravages  of  the  boll  weevil  have  seriously  af- 
fected the  cotton  crop  in  certain  parts  of  Texas.  The  attorney 
for  the  International  &  Great  Northern,  himself,  a  former  rail- 
road commissioner  of  Texas  and  a  thoughtful  student  of  this  sub- 
ject, gave  as  a  reason  for  the  advances  in  question  in  which  his 
line  participates,  that  owing  to  the  boll  weevil  the  cotton  crop 
upon  a  large  part  of  his  road  was  a  failure,  and  that  this  re- 
duced the  amount  of  cotton  for  transportation ;  that  in  conse- 

''"Ke        Proposed      Advances      in  E.    548,    582;    Central    Yellow   Piue 

Freight   Eates,   9    I.   C.   C.   E,   382,  Asso.  v.  111.  Cent.  E.  Co.,  10  I.  C.  C. 

405.      See   also    Freight    Bureau    of  E.  505. 

Cincinnati    v.    Cincinnati,    N.    O.    &  <^  Ee  Class  and  Commodity  Bates 

T.   P.   Ey.   Co.,   6   I.   C.   C.   E.    195,  from    St.   Louis   to    Texas    Common 

4  I.  C.  E.  592,  617.  Points,  11  I.  C.  C.  E.  238,  272,  273. 

•"Tift  V.  So.  Ey.  Co.,  10  I.  C.  C. 


122  Must  be  Reasonable.  [§  59. 

quence  of  the  failure  of  this  important  crop  the  whole  coun- 
try was  impoverished  and  was  able  to  purchase  less,  which  also 
contributed  to  reduce  the  income  of  his  railroad.  For  these 
reasons  it  had  become  necessary  to  advance  rates  in  order  to 
obtain  sufficient  revenue  "uith  which  to  operate  the  road  and 
pay  a  fair  return  upon  the  investment.  Here,  therefore,  we 
have  in  the  same  case  and  by  parties  of  the  same  general  system 
a  claim  upon  the  one  hand  that  these  advances  are  justified  by 
general  conditions  of  prosperity  and  upon  the  other  hand  that 
they  are  justified  by  general  conditions  of  adversity. 

"Railroads  should  share  in  the  general  prosperity.  They 
should  do  this  partly  by  being  able  to  advance  those  rates  which 
have  declined  under  commercial  conditions.  They  should  do  it 
still  more  by  the  increased  traffic  which  they  obtain.  In  times 
of  prosperity  when  money  is  plenty  and  business  good  people 
ride  more,  buy  more,  new  industries  are  being  established  and 
old  industries  are  active,  traffic  increases  and  out  of  such  in- 
creased traffic  the  railway  obtains,  by  automatic  action  so  to 
speak,  without  anj'  advance  in  its  rate  a  large  share  in  the 
general  prosperity." 

The  opinions  of  Commissioners  Clements  and  Prouty,  supra, 
are  in  accord.  The  carrier  may  not  absorb  the  prosperity  of  the 
shipper,  but  when  prosperity  exists  the  carriers  may  restore 
rates  "that  have  declined  luider  commercial  conditions."  If 
the  prosperity  of  the  countrv-  adds  to  the  density  of  the  traffic, 
it  might,  in  some  cases,  furnish  a  reason  for  reductions  in  rates. 

§  59.  Rates  long  in  existence  are  presumed  to  be  reasonable. — 
"VMien  conditions  have  not  materially  changed,  it  is  consistent 
with  the  motives  that  usually  actuate  mankind  to  presume  that 
a  rate  long  in  existence  is  reasonable  and  that  the  burden  of 
proof  is  on  him  who  seeks  to  obtain  or  justify  an  other  and 
higher  rate.  As  early  as  1889  the  conmiission,  speaking  of  a 
rate  sought  to  be  changed  by  a  carrier,  said:  "It  has,  without 
the  pressure  of  competition  other  than  on  equal  terms,  long 
continued  this  rate  and  as  long  been  making  evidence  that  this 
nineteen-cent  rate  is  not  imreasonably  low. "°'  The  principle 
was  again  aiinonneed  in  the  Food  Products  Case  ^  and  in  Proc- 

*^  Logan    et    al.,    Com.    of    North-  ""Ee    Alleged    Excessive    Freight 

■western  Grain  Asso.  v.  Chicago  &  N.  Rates  on  Food  Products,  4  I.  C.  C. 

W.  R.  Co.,   2  I.   C.   C.  E.   604,  2  I.  E.  48,  3  I.  C.  E.  93. 
C.  E.  431,  434. 


§  59.]  Charges  by  Common  Carriers  123 

tor  V.  Cincinnati,  H.  &  D.  R.  Co.^  Mr.  Commissioner  Prouty,  in 
Holmes  v.  Southern  Ry.  Co.,*"*  annoimced  the  rule  in  this  lan- 
guage: ''The  continuance  of  a  given  rate  is  not  conclusive  evi- 
dence of  the  reasonableness  of  that  rate,  but  when  a  railway  com- 
pany advances  a  rate  "^^hich  has  been  for  some  time  in  force,  the 
fact  of  its  continuance  is  in  the  nature  of  an  admission  against 
that  company,  which  tends  to  show  the  unreasonableness  of  the 
advance ;  and  the  force  of  this  admission  becomes  great  in  view 
of  the  general  decline  in  the  average  of  railway  rates  and  the 
lessened  cost  of  service."  The  general  rule  is  recognized,  but 
found  not  applicable  to  the  facts  in  Proctor  v.  Cincinnati,  H.  & 
D.  R.  Co."*  In  the  Central  Yellow  Pine  Asso.  Case "'  the  com- 
mission said:  "When  carriers  advance  a  rate  which  has  been 
for  some  time  in  force,  the  burden  of  proof  is  iipon  them  to 
show  sufficient  grounds  for  such  advance. ' '  In  the  Tift  Case  "* 
this  language  was  used:  ''The  maintenance  of  materially  lower 
rates  for  such  long  periods  of  time  brings  this  case  within  the 
rule  that  'when  an  advance  is  made  in  rates  which  have  long 
been  maintained  and  the  evidence  shows  that  the  traffic  affected 
is  large,  important  and  constantly  increasing,  the  advance  will 
be  held  unjust  unless  it  is  satisfactorily  explained.'  "  Each  of 
these  cases  was  tried  in  the  circuit  courts  and  reached  the  Su- 
preme Court  where  both  were  affirmed."''  In  the  Yellow  Pine 
Case  the  Supreme  Court  said :  ' '  The  question  submitted  to  the 
commission  *******  was  one  which  turned  on  matters  of 
fact.  In  that  question,  of  course,  there  were  elements  of  law, 
but  we  can  not  see  that  any  one  of  these  or  any  circumstances 
probative  of  the  conclusion  was  overlooked  or  disregarded."  It 
was  stated  by  the  Supreme  Court  that  the  Tift  Case,  supra,  de- 
pended "upon  the  same  legal  considerations,"  as  the  Yellow 
Pine  Case.     The  Supreme  Court,  in  the  case  of  Int.  Com.  Com. 


•*  4  I.  C.  C.  E.  87,  3  I.  C.  R.  131.  "  Central    Yellow    Pine    Asso.    v. 

""8  I.  C.  C.  R.  561,  568.  111.  Cent.  R.  Co.,  10  I.  C.  C.  R.  505. 

««9  I.  C.  C.  R.  440.     For  further  •«  Tift  v.  So.  Ry.  Co.,  10  I.  C.  C. 

history   of  this   case,   see   Int.   Com.  R.  548. 

Com.  V.  Cincinnati,  H.  &  D.  R.  Co.,  ""  Tift    v.    So.    Ry.    Co.,    138    Fed. 

146  Fed.   550;    Cincinnati,  H.   &  D.  753;   So.   Ry.  Co.  v.   Tift,   148   Fed. 

R.  Co.  V.  Int.  Com.  Com.,  206  U.  S.  1021,  206  U.  S.  428,  51  L.  Ed.  1124, 

142,  51  L.  Ed.  995,  27  Sup.  Ct.  648,  27  Sup.  Ct.  709;  111.  Cent.  R.  Co.  v. 

enforcing  order   of   the   commission.  Int.   Com.   Com.,  206  U.  S.   441,  51 

L.  Ed.  1128,  27  Sup.  Ct.  700. 


124  Must  be  Reasoxahle.  [§  60. 

V,  Chicago  G.  W.  Ey.  Co.,™  without  referring  to  the  Tift  or 
Yellow  Pine  Case,  said :  "It  nnist  also  be  remembered  that 
there  is  no  presumption  of  wrong  arising  from  a  change  of  rate 
by  a  carrier.  ***********  Undoubtedly  when  rates 
are  changed  the  carrier  making  the  change  must,  when  properly 
called  upon,  be  able  to  give  a  good  reason  therefor,  but  the  mere 
fact  that  a  rate  has  been  raised  carries  with  it  no  presumption 
that  it  was  not  rightfully  done."  These  decisions  of  the  Su- 
preme Court  are  harmonious.  The  fact  that  a  "good  reason" 
must  be  given  by  the  carrier  is  equivalent  to  saying  that,  "the 
advance  will  be  held  unjust  unless  it  is  'satisfactorily  explain- 
ed,' that  is,  unless  a  'good  reason'  therefor  is  given."  i\Ir.  Com- 
missioner Clements  ''  discusses  these  cases,  and,  after  quoting 
from  the  decision  of  the  Supreme  Court  in  the  Great  Western 
Ry.  Case,  says,  "This  is  a  mere  affirmance  of  what  the  act  to 
regulate  commerce  itself  recognizes  as  a  right  of  the  carriers, 
viz.,  the  right  to  initiate  rates.  And  it  must  be  apparent  that 
were  a  'presumption  of  wrong'  to  attach  to  any  change  in  rates 
which  the  carriers  are  authorized  to  establish,  this  must  result 
in  a  denial  of  the  free  exercise  of  the  right  guaranteed  by  the 
act.  But  it  would  be  going  far  to  say  that  the  language  above 
quoted  is  authority  for  the  inference  that  the  Supreme  Court 
does  not  still  recognize  the  principle  that  a  rate  which  has  been 
in  force  for  a  long  period  of  years  and  with  respect  to  which 
commercial  conditions  have  been  adjusted,  which  rate  has  pre- 
sumably afforded  a  reasonable  return  to  the  carrier,  may  not 
be  materially  advanced  without  imposing  upon  the  carriers  the 
burden  of  justifying  the  increase." 

§  60.  Grouping-  territory  and  giving  each  group  same  rate 
legal  under  some  circumstances. — It  has  been  and  is  yet  a  prac- 
tice with  carriers  to  group  contiguous  territory  and  give  the 
same  rate  to  all  points  within  a  particular  group.  The  com- 
mission in  1888,  speaking  of  this  practice,  said :  '" 

"•209   U.   S.   108,   119,   52   L.   Ed.  '^  LeCrosse        Manufacturers'      & 

70.5,  512,  713.  .Jobbers'  Union  v.  Chicago,  M.  &  St. 

"Pacific    Coast    Lumber    Mfrg's.  P.  E.  Co.,  1  I.  C.  C.  E.  629,  631,  2 

Asso.  V.  N.   Pac.  Ey.   Co.,   14  I.   C.  I.   C.   E.   9,   10.     See   also   Business 

C.  R.  23,  38;   see  also  Ee  Class  and  Men's   Asso.    of   Minnesota   v.    CM- 

Commodity  Eates  from  St.  Louis  to  cago,  St.  P.,  M.  &  O.  Ey.  Co.,  2  I. 

Texas  Common  Points,   11   L   C.    C.  C.  C.  E.  12,  52,  2  I.  C.  E.  41,  46; 

E.  238.  Lippman  &  Co.  v.  111.  Cent.  E.  Co., 


§  61.]  Charges  by  Common  Carriers  125 

"This  is  a  practice  which  prevails  very  largely  in  the  making 
of  rates  and  results  in  giving  to  some  to^ns  rates  which  are 
relatively  lower  than  are  charged  to  others.  It  is  probably  a 
convenient  practice  to  the  railroad  companies  or  it  would  not 
be  so  often  adopted ;  and  it  may  sometimes  tend  to  equalize  rail- 
road advantages  as  between  towns  without  wronging  any  one. 
The  system  is  not  necessarily  illegal,  it  only  becomes  illegal 
when  it  can  be  sho"v\Ti  that  illegal  results  flow  from  it." 

The  practice  is  not  approved  by  the  commission,  however, 
when  "the  difference  in  the  transportation  expense  from  the 
various  parts  of  such  district  is  considerable  and  substantial."^* 

Texas  is  arranged  in  groups  for  rate-making  purposes,  and 
when  the  parties  to  the  case  are  satisfied  with  the  system,  the 
commission  will  not  disturb  it.'* 

§  61.  Basing  point  system. — ^What  this  system  is  and  the  at- 
titude of  the  commission  thereto  cannot  be  better  stated  than 
by  using  the  language  of  the  commission  itself.  In  Board  of 
Trade  of  Plampton  v.  Nashville,  Chattanooga  &  St.  L.  K.  Co.,'' 
it  is  said  by  Mr.  Commissioner  Clements : 

"As  stated  in  our  findings  of  fact,  through  rates  made  in  this 
way — that  is,  composed  of  rates  to  ''basing  points"  and  local 
rates  back — are  in  pursuance  of  what  is  known  as  the  "basing- 
point"  system  of  rate-making,  which,  according  to  the  evidence 
of  the  witness  (Cutler),  prevails  "throughout  the  southern  ter- 
ritory. This  system  has  been  heretofore  several  times  discussed 
and  disapproved  by  the  commission.  Re  Louisville  &  N.  R.  Co., 
1  I.  C.  C.  Rep.  84,  85,  1  Inters.  Com.  Rep.  278 ;  IMartin  v.  Chi- 
cago, B.  &  Q.  R.  Co.,  2  I.  C.  C.  Rep.  25,  46,  47,  2  Inters.  Com. 
Rep.  32 ;  Re  Tariffs  and  Classifications  of  A.  &  W.  P.  R.  Co.  3 
I.  C.  C.  Rep.  19,  24,  25,  46-49,  2  Inters.  Com.  Rep.  461. 

"Under  this  system,  where  the  haul  is  through  the  basing 
point  to  a  point  bej^ond,  the  rate  to  the  latter  is  the  through 
rate  to  the  basing  point  plus  the  local  rate  from  the  basing  point 


2  T.   C.   C.  E.   584,  2  I.  C.  E.  414;  Merchants'  Union  of  Spokane  Falls 

Howell  V.    New   York,   L.   E.   &   W.  v.  N.  Pae.  E.  Co.,  5  I.  C.  C.  E.  478, 

E.  Co.,  2  I.   C.   C.  E.   272,  2   I.  C.  4  T.  C.  E.  183-  Eea  v.  Mobile  &  O. 

E.  162;  Imperial  Coal  Co.  v.  Pitts-  E.  Co.,  7  I.  C.  C.  E.  4.3. 

burg  &  L.  E.  E.  Co.,  2  I.  C.  C.  E.  '*  Farmers,  Merchants  &   Shippers 

618,  2  T.  C.  E.  436.  flub   v.    Atchison,    T.    &    S.    F.    Ey. 

''Newland  v.  N.  Pac.  E.  Co.,  6  I.  Co.,  12  T.  C.  C.  E.  S.^l,  36-5. 

C.  C.   E.   131,  4  I.  C.  E.  474,  480;  "8  T.  C.  C.  E.  503,  520,  521,  522. 


126  :\Ii-sT  HE  Rkasoxable.  [§  61. 

on,  and  where,  as  in  the  present  case,  the  haul  is  to  an  inter- 
mediate point,  tlie  rate  to  the  intermediate  point  is  the  rate 
for  the  haul  through  such  intermediate  point  to  the  basing  point 
pins  the  local  rate  back  over  the  same  line.  In  the  former  case, 
the  haul  is  not  treated  as  a  continnons  haul  through  the  basing 
point  to  the  point  beyond,  but  as  two  distinct  hauls;  one  a 
through  haul  to  the  basing  point,  and  the  other  a  local  haul  from 
the  basing  point  to  the  point  beyond;  and  in  the  latter  case, 
not  as  a  through  haul  to  the  intermediate  point,  but  as  a  haul 
through  the  intcrmediato  point  to  the  basing  point  beyond  plus 
a  local  haul  back.  Local  hauls,  as  is  well  Icnown,  are  much  more 
expensive  to  the  carrier  per  mile  than  long  through  hauls,  or 
any  proportion  of  such  through  hauls.  Therefore  local  rates 
are  properly  made  much  higher  for  the  same  distance  than 
through  rates,  and  hence  the  charge  of  a  local  rate  for  a  part 
of  a  through  haul,  when  the  extra  expense  of  a  local  haul  has 
not  been  incurred,  is  prima  facie  excessive.  Augusta  Southern 
^..  Co.  v.  Wrightsville  &  T.  R.  Co.,  74  Fed.  Rep.  522. 

"It  is  a  significant  fact  that  the  result  of  this  system  of  rate- 
making  is  to  enable  the  basing-point  merchants  to  compete  with 
the  local  merchants  of  surrounding  localities  at  their  own  doors 
on  ecjual  terms,  while  the  latter  are  debarred  from  such  compe- 
tition with  the  former,  and  as  to  territory  intermediate  be- 
tween the  basing  points  and  surrounding  localities,  merchants 
at  the  basing  points  are  given  such  an  advantage  in  rates  as  to 
enable  them  to  undersell  merchants  at  surrounding  localities, 
and  drive  them  out  of  the  "jobbing  business"  in  such  inter- 
mediate territory  as  the  testimony  shows  has  been  the  result 
in  the  present  case.  The  direct  tendency  and  almost  invariable 
outcome  of  the  system  is  that  basing  points  are  built  up  and 
flourish  at  the  expense  of  surrounding  localities.  The  building 
up  of  one  locality  at  the  expense  of  another,  by  rates  favoring 
the  former  and  discriminating  against  the  latter,  was  undoubt- 
edly one  of  the  principal  evils  which  the  act  to  regulate  com- 
merce was  designed  to  remedy,  and  it  would  seem  that  due  allow- 
ance might  and  should  be  made  for  the  effect  of  competition 
without  defeating  the  object  of  the  law.  What  are  termed  com- 
petitive points  may  be  given  rates  relatively,  or  even  absolute^, 
lower  than  the  rates  to  shorter-distance  points,  without  making 
the  rates  to  the  latter  the  rates  to  the  former  plus  the  exact 
local  back.     There  is  grave  reason  for  the  conclusion  that  the 


§  62.]  "Cpiarges  by  Common  Carriers  127 

object  of  the  carriers  in  charging  as  a  part  of  the  through  rate 
the  local  between  the  basing  point  and  surrounding  localities  is 
to  accomplish  the  natural  result  of  this  system  of  rate-making, 
and  that  competition  is  used  as  a  pretext  or  justification  when 
it  does  not  in  fact  necessitate  such  a  state  of  things." 

§  62.  Comparisons  between  different  lines  as  a  means  of  de- 
termining correct  rate. — It  is  competent  to  compare  rates,  dis- 
tances and  general  conditions  on  one  road  with  those  on  an- 
other when  considering  the  adjustment  of  rates,  but  in  connec- 
tion therewith  all  other  factors  that  enter  into  the  cpiestion  of 
what  constitutes  a  reasonable  rate  must  also  be  considered.'" 
Rates  should  be  relatively  as  well  as  absolutely  reasonable,  and 
a  locality  not  widely  dissimilar  from  another  is  prima  facie  en- 
titled to  the  same  rate."  When  the  circumstances  and  condi- 
tions are  substantially  dissimilar,  comparisons  of  rates  are 
valueless."  Comparisons  of  "transportation  rates  in  force  on 
lines  of  rival  companies  or  on  different  branches  or  lines  of  the 
same  company  have  a  bearing  upon  and  are  entitled  to  consid- 
eration in  connection  with  the  cjuestion  of  reasonable  charges 
for  transportation  services  rendered  under  like  conditions. ' ' '" 
And  as  said  by -IMr.  Commissioner  Harlan  : '"' 

"But  while  the  revenue  per  ton  per  mile  over  other  routes  on 
other  lines  and  to  other  destinations  is  often  suggestive  in  ar- 
riving at  a  proper  estimate  of  the  reasonableness  of  a  rate  over 
a  route  complained  of,  it  is  by  no  means  conclusive.  Varying 
conditions  existing  on  different  lines  must  of  necessity  justify 
differences  in  rates  for  hauls  of  the  same  distance.  The  real 
question  in  any  such  complaint  is  the  reasonableness  of  the  par- 
ticular rate  on  the  particular  line  between  the  points  in  ques- 

'» Cannon  v.  Mobile  &  O.   E.   Co.,  Pac.  E.  Co.,  6  I.  C.  C.  E.  520;  Mar 

11    I.    C.    C.    E.    537,    543 ;    Lincoln  tin  v.  Louisville  &  N.  E.  Co.,  9  I.  C 

Creamery  Co.  v.  Union  Pac.  E.  Co.,  C.  E.  581,  597. 

5  L   C.   C.  E.   156,  3  I.   C.  E.   794 ;  '"  Morrell  v.  Union  Pacific  E.  Co. 

Ee      Tariffs      of       Transcontinental  6   L  C.   C.   E.   121,   4   I.   C.   E.   469 

Lines,  2  I.  C.  C.  E.  324,  2  L  C.  E.  See       discussion      of      question      in 

203.  Freight     Bureau     of     Cincinnati    v 

"Manufacturers'      and     Jobbers'  Cincinnati,   N.   O.  &  T.   P.  Ey.  Co. 

Union   v.    Minneapolis   &   St.   L.   E.  6  I.   C.   C.  E.   195,  4  I.   C.   E.   592 

Co.,  4  L  C.  C.  E.  79,  3  L  C.  E.  115.  010,  611. 

'* Business    Men's    Asso.    v.    Clii-  ^"  Dcscl-Boottclior    Co.    v.    Kansas 

cago  &  N.  W.  E.  Co.,  2  L  C.  C.  E.  City  S.  Ey.  Co.,  12  I.  C.  C.  E.  220, 

73,  2  L  C.  E,  58;   Evans  v.  Union  226. 


128  ]\rusT  BE  Reasonable.        '  [§63. 

tion.  In  testing:  such  a  rate  the  rates  on  the  same  or  adjacent 
lines  in  the  inmiediate  territory  where  the  same  conditions  exist 
are  of  much  greater  significance  and  afford  a  much  more  accu- 
rate basis  for  our  action." 

A  mere  comparison  of  the  rates  attacked  with  rates  in  other 
parts  of  the  country  is  not  sufficient  evidence  upon  which  the 
commission  may  condemn  a  rate.*' 

§  63.  Car  load  and  less  than  car  load  movements  as  affecting 
the  rate. — It  has  been  hereinbefore  shown  that  cost  and  value 
of  service  both  enter  into  the  question  of  what  constitutes  a 
reasonable  rate.  ' '  The  hazard  involved ' ' ""  must  also  be  con- 
sidered in  determining  that  question.  It  is  undisputed  that  it 
costs  more  per  hundred  pounds  to  haul  freight  in  less  than  car 
loads  than  it  costs  to  haul  the  same  freight  in  car  load  quan- 
tities. Among  other  reasons,  this  is  true  because  the  shipper 
loads  and  the  receiver  or  consignee  unloads  car  load  shipments, 
while  the  carrier  loads  and  unloads  articles  shipped  in  less  than 
car  loads.  Usually  a  car  load  shipment  is  sealed  by  the  con- 
signor and  unsealed  by  the  consignee,  and  in  the  absence  of  the 
seals,  showing  that  it  has  been  tampered  with,  or  the  car  being 
in  any  way  defective,  there  can  be  no  such  thing  as  a  concealed 
loss  chargeable  to  the  carrier.  The  clerical  expense  of  billing 
and  the  expense  of  delivering  is  much  less  in  car  load  than  in 
less  than  car  load  shipments,  and  the  loss  and  damage  on  less 
than  car  load  shipments  is  greater  than  on  car  load  movements. 
This  principle  is  recognized  by  the  commission.  In  Thurber  v. 
New  York  C.  &  11.  R.  R.  Co.''  the  commission  said:  ''It  is  a 
sound  rale  for  carriers  to  adapt  their  classifications  to  the  laws 
of  trade.  If  any  article  moves  in  sufficient  volume,  and  the  de- 
mands of  commerce  will  be  better  served,  it  is  reasonable  to  give 
it  a  car  load  classification  and  rate.  The  car  load  is  probably 
the  only  practicable  unit  of  quanity. "  "While  the  principle  of 
a  difference  between  car  load  and  less  than  car  load  shipments  is 
recognized  by  the  commission,  and  while  to  prevent  discrimina- 
tion, it  could  prescribe  such  a  differential,  that  tribunal  is  dis- 

«^  Dallas   Freight   Bureau   v.    Mo.,  ^3   T.    C.   C.   E.    473,   2   I.    C.   E. 

Kan.  &  Tex.  By.  Co.,  12  I.  C.  C.  E.  742,    7.32.        See    also    Harvard    v. 

427,  4.32,  43.3,  and  cases  cited  at  p.  Pennsylvania   Company,   4   I.    C.    C. 

433.  E.  212,  3  I.  C.  E.  257. 

*-  Kindel   v.    Adams    Express    Co., 
13  I.  C.  C.  E.  47.5,  485. 


§  63.]  Charges  by  Common  Carriers  129 

inclined  to  exercise  such  power.  Mr.  Commissioner  Clements, 
voicing  the  opinion  of  the  commission,  said :  ^ 

''The  commission  has  held  that  differentiation  by  the  carriers 
of  carloads  from  less  than  carloads  in  the  application  of  rates 
may  be  warranted  under  certain  conditions.  Here,  however,  we 
are  asked  to  enter  an  affirmative  order  establishing  a  differential. 
What  would  be  the  effect  upon  all  the  business  interests  involved 
in  this  traffic  should  the  commission  take  such  action  1  No  doubt 
its  effect  upon  the  jobbers  at  southeastern  points  would  be  bene- 
ficial; traffic  would  move  into  the  southeast  in  such  manner  as  to 
give  the  longest  possible  haul  in  carloads  to  the  local  dealers, 
who,  securing  these  long  haul  carload  rates,  would  be  the  ben- 
eficiaries. Other  classes  who  would  be  affected  by  the  change 
would  be  the  small  dealers  and  consumers,  and  it  appears  that 
the  necessary  operation  of  such  a  change  would  be  to  cut  off 
these  classes  from  purchasing  in  small  quantities  at  Nashville 
and  Ohio  River  points  and  compel  them  to  deal  with  jobbers  in 
their  immediate  vicinity,  who  would  purchase  in  large  enough 
quantities  to  secure  the  benefits  of  the  lower  rates  on  the  long 
carload  haul  from  the  Ohio  River  and  Nashville.  The  entire 
record  points  to  the  fact  that  a  differential  on  this  traffic  would 
have  the  effect  of  enhancing  the  price  of  those  products  to  the 
consumer.  ******** 

"A  railroad  can  not  be  compelled,  as  prayed  in  this  case,  or 
even  permitted  to  adopt  a  system  of  rate  making  which  enables 
a  large  dealer  to  drive  a  smaller  dealer  out  of  the  market.  We 
must  have  some  other  motive  upon  which  to  act  in  a  matter  of 
this  kind  than  that  the  trade  of  a  particular  community  is  a 
vested  right  belonging  to  any  particular  class  in  that  community. 
We  are  not  permitted  so  to  narrow  our  view  of  all  the  inter- 
ests involved  as  to  look  only  to  the  interests  of  a  particular  class 
in  the  community,  and  this  for  the  sole  purpose  of  vesting  in 
that  class  what  they  claim  to  be  their  inherent  rights,  more  es- 
pecially when  the  enjoyment  thereof  is  to  be  at  the  expense  of 
the  community  at  large." 

With  great  deference  to  the  learned  lawyer  and  experienced 
eonmiissioner  who  wrote  the  opinion  in  the  Duncan  Case,  it  is 
submitted  that  he  failed  to  give  due  effect  to  the  rule  of  cost  of 


«^  Duncan   v.    Nashville,    C.    &    St.       594,  595. 
L.  Ey.  Co.,  16  I.  C.  C.  R.  590,  593, 


130  ]\rusT  BE  Reasonable.  [§  63. 

service.  It  does  not  necessarily  follow  tlint  a  higher  rate  on 
less  than  ear  loads  increases  the  price  to  the  consumer,  and  if 
it  did,  it  does  not  necessarily  follow  that  one  man  should  re- 
ceive for  his  money  a  greater  service  than  another  receives  for 
the  same  amount  of  money.  Carriers  must  ordinarily  receive 
from  the  total  of  all  commodities  transported  by  them  enough 
to  pay  all  operating  expenses  and  a  fair  return  on  the  invest- 
ment. If  fifty  per  cent,  of  these  commodities  are  transported  in 
less  than  car  load  lots,  it  is  fair  to  say  that  sixty  per  cent,  of 
the  cost  of  all  transportation  is  caused  by  this  moiety  and  forty 
per  cent,  by  the  half  transported  in  car  lots.  But  while  the 
car  load  shipper  costs  the  carrier  only  forty  per  cent,  of  the 
transportation  charge,  he  pays  fifty  per  cent,  thereof.  If  the 
car  load  shipper  paid  only  the  forty  per  cent,  he  should  pay  and 
the  less  than  car  load  shipper  should  pay  his  sixty  per  cent.,  the 
total  transportation  charges  paid  by  the  consumer  would  be 
the  same  that  he  pays  when  there  is  no  differential  and  there 
would  be  no  discrimination.  The  jobber  is  sometimes  regard- 
ed as  a  mere  parasite,  but  this  view  of  his  function  is  incor- 
rect. He  fills  an  important  position  in  commerce.  Without  him, 
or  some  other  equally  effective  agency,  the  producer  and  the 
consumer  could  not  be  gotten  together.  The  Kansas  wheat 
farmer  could  never  market  his  wheat  directly  by  dealing  with 
the  Georgia  consumer.  There  must  be  one  or  more  intermedi- 
aries who  collect  the  product  and  distribute  it  to  the  consumer. 
He  who  collects  the  grain  at  the  primary  markets  of  Kansas 
City,  St.  Louis,  Omaha,  Chicago,  and  perhaps  other  cities,  the 
jobber  at  Nashville,  Atlanta  and  other  cities  and  the  retail 
dealer  who  sells  direct  to  the  consumer,  each  performs  a  neces- 
sary service  in  enabling  the  producer  to  sell  and  the  consumer  to 
buy.  When  a  producer  controls  all,  or  a  large  part,  of  a  com- 
modity, he  may  himself  perform  all  these  intermediary  services, 
but  such  services  must  be  performed  by  some  agency.  The  agen- 
cies performing  this  necessary  service  will  be  compelled  by  the 
laws  of  trade  not  to  charge  more  than  is  reasonable  for  the  ser- 
vice. It  is  not  a  question  of  a  large  dealer  driving  out  the  small 
dealer,  but  a  question  of  those  intermediaries  paying  for  only 
what  service  they  obtain  from  the  carriers.  The  total  transpor- 
tation charges  which  the  consumer  pays  are  not  increased,  but 
these  charges  are  equitably  distributed.  The  justice  of  a  car 
load  and  less  than  car  load  differential  is  shown  by  the  general 


§  64.]  Charges  by  Common  Carriers  131 

application  by  the  carriers  tliemselves  of  such  differential.  The 
''differential,  like  the  rate  itself,  should  be  fixed  with  a  view  to 
the  just  interests  of  all  parties  concerned.  *******  In 
fixing  upon  a  rate  or  a  rate  adjustment  a  carrier  may  always 
properly  consider  the  cost  of  service,  and  that  factor  should  have 
great  influence  with  the  commission  in  passing  upon  the  reason- 
ableness of  the  carrier's  action.  If  it  actually  costs  these  car- 
riers less  to  handle  this  transcontinental  freight  in  carloads  than 
in  less  than  car  loads  we  ought  not  in  the  absence  of  a  con- 
trolling reason  to  the  contrary,  to  deny  the  carrier  the  right  to 
make  a  difference  in  its  tariff  corresponding  to  the  difference  of 
expense.  The  defendant  carriers  have  somewhat  elaborately  es- 
timated the  relative  expense  of  carrying  this  freight  in  carloads 
and  less  than  carloads.  The  nature  of  that  testimony  fully  ap- 
pears in  the  statement  of  facts,  and  need  not  be  repeated.  "We 
have  found  that  it  costs  transcontinental  carriers  approximately 
50  per  cent,  more  to  handle  transcontinental  traffic  in  less  than 
car  loads  than  in  carloads.  The  less  than  car  load  rate  in  many 
of  the  instances  called  to  our  attention  by  the  complainant  ex- 
ceeds the  carload  rate  by  somewhat  more  than  50  per  cent.,  but 
on  the  whole  we  are  inclined  to  think  that,  on  the  average,  the 
difference  between  carloads  and  less  than  carloads  established 
by  the  tariff  of  June  25,  1898,  does  not  generally,  if  at  all,  exceed 
the  actual  difference  of  cost  in  the  service  rendered.'"'  See  also 
post  sections  82  and  83. 

§  64.  Relation  of  through  rates  to  the  total  of  the  local  rates. 
— In  December,  1906,  the  commission  adopted  and  issued  to  all 
railroads  the  following  ruling: 

43.  Reduction  of  joint  rate  to  equal  sum  of  locals  (effective 
December  21,  1906).  Where  a  joint  rate  is  in  effect  by  a  given 
route,  which  is  higher  between  any  points  than  the  sum  of  the 
locals  between  the  same  points,  by  the  same  or  any  other  route, 
and  such  joint  rate  has  been  in  effect  thirty  days  or  longer,  such 
higher  joint  rate  may,  until  further  notice  from  the  commission, 
be  changed  by  reducing  the  same  to  the  sura  of  such  locals,  but 
not  otherwise,  upon  posting  one  day  in  advance  a  tariff  of  such 
reduced  rate  and  mailing  a  copy  thereof  to  the  commission. 

Many  informal  complaints  are  received  in   connection  with 


"Business    Men's    League    of    St.       Co.,  9  T.  C.  C,  K.  318,  3158,  359. 
Louis  V.  Atcliison,  T.  &  S.  F.  Ky. 


132  iMusT  BE  Reasonable.  [§  65. 

regularly  established  through  rates  which  are  in  excess  of  the 
sum  of  the  locals  between  the  same  points.  The  commission  has 
no  authority  to  change  or  fix  a  rate  except  after  full  hearing 
upon  formal  complaint.  It  is  believed  to  be  proper  for  the 
commission  to  say  that,  if  called  upon  to  formally  pass  upon  a 
case  of  this  nature,  it  would  be  its  policy  to  consider  the  through 
rate,  which  is  higher  than  the  sum  of  the  locals  between  the 
same  points  as  prima  facie  unreasonable,  and  that  the  burden 
of  proof  would  be  upon  the  carrier  to  defend  such  higher 
through  rate. 

The  foregoing  administrative  order  of  the  commission  fur- 
nishes a  general  rule  which  has  been  frequently  enforced.*" 
There  have  been  and  may  be  reasons  which  make  the  rule  inap- 
plicable.*' 

§  65.  The  public  interest  must  be  considered  in  making  rates. 
— A  rate  made  either  by  a  carrier,  a  legislative  or  an  adminis- 
trative body  must  not  disregard  the  interests  of  the  public,  and 
the  fact  that  a  particular  rate  is  necessary  to  enable  the  carrier 
to  pay  interest  and  dividends  will  not  justify  a  rate  that  is  un- 
duly burdensome  on  the  public. 

The  legislature  of  Kentucky  having  prescribed  the  maximum 
rate  to  be  charged  by  turnpike  roads  in  that  state,  the  Supreme 
Court  in  determining  whether  or  not  such  act  was  illegal,  said :  ^ 

''It  is  proper  to  say  that  if  the  answer  had  not  alleged,  in 
substance,  that  the  tolls  prescribed  by  the  act  of  1890  were 
wholly  inadequate  for  keeping  the  road  in  proper  repair  and  for 
earning  dividends,  we  could  not  say  that  the  act  was  uncon- 
stitutional merely  because  the  company  (as  was  alleged  and  as 
the  demurrer  admitted)  could  not  earn  more  than  4  per  cent, 
on  its  capital  stock.  It  cannot  be  said  that  a  corporation  oper- 
ating a  public  highway  is  entitled,  as  of  right,  and  without  ref- 
erence to  the  interests  of  the  public,  to  realize  a  given  per  cent. 
upon  its  capital  stock.     When  the  question  arises  whether  the 


s"  Laning-Harris  Coal  &  Grain  Co.  597,   41   L.    Ed.    560,    566,    567,    17 

V.  Mo.  Pae.  Ey.  Co.,  13  I.  C.  C.  R.  Sup.  Ct.  198.     Quoted  and  foUowed, 

148,  159.  Smyth  v.  Ames,  169  U.  S.  466,  545, 

«'  CoffeyviUe     Vitrified     Brick     &  42  L.  Ed.  819,  848,  18  Sup.  Ct.  418. 

Tile  Co.  V.   St.  Louis  &  S.  F.  Ry.  See  also  Minneapolis  &  St.  L.  R.  Co, 

Co.,  12  I.  C.  C.  R.  498,  499.  v.   Minnesota,    186   IJ.    S.    257,    268, 

«« Covington   &  L.   Turnpike  Road  46   L.   Ed.    1151,   1158,  22   Sup.   Ct. 

Co.  V.  Sandford,  164  U.  S.  578,  596,  900. 


§  66.]  Charges  by  Common  Carriers  133 

legislature  lias  exceeded  its  constitutional  power  in  prescribing 
rates  to  be  charged  by  a  corporation  controlling  a  public  high- 
way, stockholders  are  not  the  only  persons  whose  rights  or  in- 
terests are  to  be  considered.  The  rights  of  the  public  are  not  to 
be  ignored.  It  is  alleged  here  that  the  rates  prescribed  are  im- 
reasonable  and  unjust  to  the  company  and  its  stockholders.  But 
that  involves  an  inquiry  as  to  what  is  reasonable  and  just  for 
the  public.  If  the  establishing  of  new  lines  of  transportation 
should  cause  a  diminution  in  the  number  of  those  who  need  to 
use  a  turnpike  road,  and,  consequently,  a  diminution  in  the 
tolls  collected,  that  is  not,  in  itself,  a  sufficient  reason  why  the 
corporation,  operating  the  road,  should  be  allowed  to  maintain 
rates  that  would  be  unjust  to  those  who  must  or  do  use  its  prop- 
erty. The  public  cannot  properly  be  subjected  to  unreasonable 
rates  in  order  simply  that  stockholders  may  earn  dividends.  The 
legislature  has  the  authority  in  every  case,  where  its  power  has 
not  been  restrained  by  contract,  to  proceed  upon  the  ground  that 
the  public  may  not  rightfully  be  required  to  submit  to  unreason- 
able exactions  for  the  use  of  a  public  highway  established  and 
maintained  under  legislative  authority.  If  a  corporation  cannot 
maintain  such  a  highway  and  earn  dividends  for  stockholders, 
it  is  a  misfortune  for  it  and  them  which  the  constitution  does 
not  require  to  be  remedied  by  imposing  unjust  burdens  upon  the 
public. ' ' 

A  particular  service  may  be  required  of  a  public  carrier,  when 
it  is  necessary  to  the  public  convenience,  where  the  whole  ser- 
vice performed  yields  a  fair  compensation,  even  though  such 
particular  service  must  be  furnished  at  a  loss  to  the  carrier.*"* 

§  66.  Through  routes  and  joint  rates. — If  only  the  rates  on 
the  lines  of  each  carrier  considered  separately  were  subject  to 
the  regulation  of  the  commission,  it  would  be  very  difficult  to 
obtain  reasonable  rates  on  those  commodities  that  move  over 
two  or  more  lines.  For  this  reason,  carriers  subject  to  the  act 
are  required  to  establish  through  routes  and  joint  rates.  Through 
routes  need  not  be  established  if  there  already  exists  a  through 
route  furnishing  to  the  shippers  reasonable  facilities.  Joint 
rates  must  be  reasonable  and  the  principles  relating  to  rates 
generally  apply  as  well  to  these  rates.     Of  the  right  of  ship- 

«•  Atlantic  Coast  Line  R.  Co.  v.  mission,  206  U.  S.  1,  51  L.  Ed.  933, 
North    Carolina    Corporation    Com-       27  Sup.  Ct.  585. 


134:  Must  be  Reasonable.  [§  67. 

pers  to  through  routes  and  joint  rates  !l\Ir.  Commissioner  Clem- 
ents says :  °° 

"The  law  does  not  require  the  commission  in  all  eases  where 
no  through  routes  and  joint  rates  exist  to  establish  them,  but 
only  empowers  it  to  do  so  in  proper  cases  with  the  manifest  in- 
tent of  giving  effect  to  the  general  purposes  of  the  act  to  regu- 
late commerce  bj^  securing  reasonable  facilities  to  the  public 
and  preventing  unreasonable  and  unjust  rates,  practices,  and 
discriminations,  and  in  the  exercise  of  this  authority  the  com- 
mission is  bound  by  the  same  considerations  of  justice  and  fair- 
ness as  it  is  in  the  exercise  of  the  rate-making  power  in  other 
respects.  Where  neither  the  interest  of  the  public,  nor  the  ends 
of  justice  as  between  parties  directly  interested,  will  be  pro- 
moted by  the  establishment  of  through  routes  and  joint  rates 
and  divisions  thereof,  a  proper  case  for  the  exercise  of  the  au- 
thority invoked  has  not  been  shown." 

§  67.  General  principles  applicable  to  the  question,  what  is  a 
reasonable  rate? — Rates  must  be  reasonable,  but  whether  or  not 
a  particular  rate  or  a  particular  schedule  of  rates  is  reasonable 
presents  a  question  difficult  of  solution.  Cites  the  court  in  In- 
terstate Commerce  Commission  v.  Louisville  &  N.  R.  Co.,  102 
Fed.  709,  710:  "No  more  difficult  problem  can  be  presented 
than  this."  That  the  problem  is  difficult  all  agree,  that  a  scien- 
tific law  of  rate  making  does  not  exist  is  also  admitted.  But 
commissions  and  courts  must  endeavor  to  solve  the  problem,  and 
to  the  solution  thereof  they  have  brought  the  application  of 
certain  principles,  that  must  be  considered  but  which  can  not 
always  be  applied.  We  have  already  seen  that  cost  and  value  of 
service,  the  risk  involved,  competition,  amount  of  traffic  and  dis- 
tance hauled,  business  conditions,  long  maintenance  of  rates, 
comparisons  between  different  rates,  the  method  of  shipping, 
whether  by  the  car  or  in  smaller  lots,  and  the  interests  of  the 
general  public  are  facts  and  conditions  some  of  which  arise  in 
every  case  and  all  of  which  may  be  presented  in  some  cases.  The 
weight  that  shall  be  given  to  any  particular  fact  depends  on 
many  and  varying  circumstances  and  must  be  determined  in 
each  particular  case.  No  law  of  rates  can  be  prescribed,  to  which 
there  may  not  be  many  exceptions.    The  nearest  a  scientific  law 

""Loup  Creek  Colliery  Co.  v.  Vir-       471,  477. 
ginian  Eailway  Co.,  12   I.   C.   C.  K. 


§  67.]  Charges  by  Common  Carriers  185 

that  can  be  announced  is.  no  rate  should  exceed  the  value  of  the 
service  to  the  shipper;  and  no  schedule  of  rates  should,  within 
this  value,  be  less  than  the  cost  of  the  service  to  the  carrier ;  cost 
of  service  including  a  ''fair  return  on  the  property  employed  in 
the  public  use."  That  charges  may  not  exceed  the  value  of  the 
service  is  an  economic  law  not  depending  upon  courts  or  other 
tribiuials  for  its  enforcement.  Neither  shippers  nor  any  one 
else  will  long  continue  paying  more  for  a  service  than  it  is 
worth  to  them.  Nor  will  investors  put  money  in  a  service  for 
which  they  receive  less  than  it  costs  to  render  the  service.  It 
is,  therefore,  apparent  that  value  of  service  and  cost  of  service 
represent  the  maximum  and  minimum  of  rates.  It  was  a  maxim 
of  traffic  managers  that  "all  the  traffic  could  bear"  was  the  only 
definite  principle  applicable  to  rate  making.  Kirkman,  in  the 
Science  of  Eailways,  vol.  8,  at  p.  11,  says:  "In  the  practical 
operation  of  railroads  such  rates  are  made  as  the  traffic  will 
bear."  If  this  rule  were  adopted  there  would  be  little  difficulty 
in  fixing  rates.  But  it  is  apparent  that  such  a  rule,  in  view  of 
the  fact  that  transportation  companies  are  affected  with  a  pub- 
lic use,  would  be  imfair.  Mr.  Commissioner  Clements,  in  Tift 
V.  So.  Ry.  Co.,  10  I.  C.  C.  R.  548,  582,  says:  "This  claim  *  *  * 
*  *  *  on  the  part  of  the  carriers  is  based  upon  the  erroneous  as- 
sumption, so  prevalent  among  traffic  managers,  that  a  rate  may 
be  as  high  as  'the  traffic  will  bear.'  "  What  "the  traffic  will 
bear"  is,  by  force  of  economic  law,  the  maximum.  It  has  been 
seen  that  a  particular  service  may,  under  some  circumstances, 
be  required  of  a  common  carrier  at  less  than  cost,  but  ordinarily 
cost  of  service  fixes  the  minimum  rate.  It  is  interesting  and  in- 
structive to  group  what  has  been  said  by  the  courts  and  the 
commission  with  reference  to  this  problem.  The  Supreme  Court, 
162  U.  S.  197,  40  L.  Ed.  940,  5  I.  C.  Rep.  405,  16  Sup.  Ct. 
18  Sup.  Ct.  418,  speaking  of  the  basis  of  a  whole  schedule  of 
rates,  said: 

"We  hold,  however,  that  the  basis  of  all  calculations  as  to  the 
reasonableness  of  rates  to  be  charged  by  a  corporation  main- 
taining a  highway  under  legislative  sanction  must  be  the  fair 
value  of  the  property  being  used  by  it  for  the  convenience  of 
the  public.  And,  in  order  to  ascertain  that  value,  the  original 
cost  of  construction,  the  amount  expended  in  permanent  im- 
provements, the  amoiuit  and  market  value  of  its  bonds  and  stock, 
the  present  as  compared  with  the  original  cost  of  construction, 


136  Must  be  Reasonable.  [§  67. 

the  probable  earning  capacity  of  the  property  under  particular 
rates  prescribed  by  statute,  and  the  sum  required  to  meet  oper- 
ating expenses,  are  all  matters  for  consideration,  and  are  to  be 
given  such  weight  as  may  ])e  just  and  right  in  each  case.  We 
do  not  say  that  there  may  not  be  other  matters  to  be  regarded 
in  estimating  the  value  of  the  property.  What  the  company  is 
entitled  to  ask  is  a  fair  return  upon  the  value  of  that  which  it 
employs  for  the  public  convenience.  On  the  other  hand,  what 
the  public  is  entitled  to  demand  is  that  no  more  be  exacted  from 
it  for  the  use  of  a  public  highway  than  the  services  ren- 
dered by  it  are  reasonably  worth." 

But  in  the  same  case,  the  court  quotes  with  approval  from 
Covington  &  L.  Turnpike  Co.  v.  Sandford,  164  U.  S.  578,  596, 
597,  41  L.  Ed.  560,  566,  567,  17  Sup.  Ct.  198,  the  following: 

"It  cannot  be  said  that  a  corporation  is  entitled,  as  of  right, 
and  without  reference  to  the  interests  of  the  public,  to  realize 
a  given  per  cent,  upon  its  capital  stock.  When  the  question 
arises  whether  the  legislature  has  exceeded  its  constitutional 
power  in  prescribing  rates  to  be  charged  by  a  corporation  con- 
trolling a  public  highway,  stockholders  are  not  the  only  per- 
sons whose  rights  or  interests  are  to  be  considered.  The  rights 
of  the  public  are  not  to  be  ignored.  It  is  alleged  here  that  the 
rates  prescribed  are  unreasonable  and  unjust  to  the  company  and 
its  stockholders.  But  that  involves  an  inquiry  as  to  what  is  rea- 
sonable and  just  for  the  public.  The  public  cannot  properly  be 
subjected  to  unreasonable  rates  in  order  simply  that  the  stock- 
holders may  earn  dividends.  The  legislature  has  the  authority, 
in  every  case  where  its  power  has  not  been  restrained  by  eon- 
tract,  to  proceed  upon  the  ground  that  the  public  may  not  right- 
fully be  recpiired  to  submit  to  unreasonable  exactions  for  the 
use  of  a  public  highway  established  and  maintained  under  leg- 
islative authority.  If  a  corporation  cannot  maintain  such  a 
highway  and  earn  dividends  for  its  stockholders,  it  is  a  misfor- 
tune for  it  and  them  which  the  constitution  does  not  require 
to  be  remedied  by  imposing  unjust  burdens  upon  the  public. 
So  that  the  right  of  the  public  to  use  the  defendant's  turnpike 
upon  payment  of  such  tolls  as  in  view  of  the  nature  and  value  of 
the  service  rendered  by  the  company  are  reasonable  is  an  ele- 
ment in  the  general  inquiry  whether  the  rates  established  by 
law  are  unjust  and  unreasonable." 

In  speaking  of  the  factors  to  be  considered  in  rate  making  in 


§  67.]  Charges  by  Common  Carriers  137 

Int.  Com.  Com.  v.  Chicago  G.  W.  Ky.  Co.,  141  Fed.  1003,  1015, 
1016,  Judge  Bethea,  citing  authorities,  says: 
•  "A  careful  examination  of  the  opinions  of  that  court  (as 
well  as  the  evidence  taken  in  these  cases)  shows  that  there  are 
a  great  many  factors  and  circumstances  to  be  considered  in  fix- 
ing a  rate.  Noyes,  Am.  R.  R.  Rates,  pp.  61  et.  seq.,  85-109. 
Among  other  things:  (1)  The  value  of  the  service  to  the  ship- 
per, including  the  value  of  the  goods  and  the  profit  he  could 
make  out  of  them  by  shipment.  This  is  considered  an  ideal 
method,  when  not  interfered  with  by  competition  or  other  fac- 
tors. It  includes  the  theory  so  strenuously  contended  for  by 
petitioners,  the  commission,  and  its  attorneys,  of  making  the 
finished  product  carry  a  higher  rate  than  the  raw  material. 
This  method  is  considered  practical,  and  is  based  on  an  idea 
similar  to  taxation.  Interstate  Commerce  Commission  v.  B.  & 
0.  Ry.  Co.  (C.  C.)  43  Fed.  37,  53;  Noyes,  Am.  R.  R.  Rates,  53. 

(2)  The  cost  of  service  to  the  carrier  would  be  an  ideal  theory, 
but  it  is  not  practical.  Such  cost  can  be  reached  approximately, 
but  not  accurately  enough  to  make  this  factor  controlling.  It 
is  worthy  of  consideration,  however.  Interstate  Commerce  Com- 
mission V.  Baltimore  &  0.  Ry.  Co.,  43  Fed.  37,  3  I.  C.  R.  192 ; 
Ransome  v.  Eastern  Counties  Railway  Company  (1857)  I.  C. 
B.  N.  S.  437,  26  L.  J.  C.  P.  91 ;  Judson  on  Interstate  Commerce, 
§§  148,  149;  Western  Union  Telegraph  Co.  v.  Call  Publishing 
Co.,  181  U.  S.  92,  21  Sup.  Ct.  561,  45  L.  Ed.  765;  Interstate 
Commerce  Commission  v.  Detroit,  Grand  Haven  &  Milwaul^ee 
Railroad  Co.,  167  U.  S.  633,  17  Sup.  Ct.  986,  42  L.  Ed.  306. 

(3)  Weight,  bulk  and  convenience  of  transportation.  (4)  The 
amount  of  the  product  or  the  commodity  in  the  hands  of  a  few 
persons  to  ship  or  compete  for,  recognizing  the  principal  of  sell- 
iDg  cheaper  at  wholesale  than  at  retail.  Interstate  Commerce 
Commission  v.  B.  &  0.  Ry.  Co.,  145  U.  S.  263,  12  Sup.  Ct.  844, 
36  L.  Ed.  699.  (5)  General  public  good,  including  good  to  the 
shipper,  the  railroad  company  and  the  different  localities.  In- 
terstate Commerce  Commission  v.  B.  &  0.  Ry.  Co.,  145  U.  S. 
263,  12  Sup.  Ct.  844,  36  L.  Ed.  699.  (6)  Competition,  which 
the  authorities,  as  well  as  the  experts,  in  their  testimony  in 
these  cases,  recognize  as  a  very  important  factor.  Pickering 
Phipps  V.  London  &  Northwestern  Railway  Company,  2  Q.  B. 
D.  (1882)  229  (this  case  construes  section  2  of  the  Englisli  act 
of  1854,  which  is  almost  like  section  3  of  our  interstate  com- 


138  ]MusT  BE  Reasonable.  [§  67. 

merce  act)  ;  Interstate  Commerce  Commission  v.  B.  &  0.  Ry.  Co., 
supra. ;  Cincinnati.  New  Orleans  &  Texas  Pacific  Railway  Com- 
pan}^  V.  Interstate  Commerce  Commission,  162  U.  S.  184,  16  Sup. 
Ct.  700,  40  L.  Ed.  935 ;  Interstate  Commerce  Commission  v. 
Alabama  Midland  Railway  Company,  168  U.  S.  144,  18  Sup. 
Ct.  45,  42  L.  Ed.  414;  Louisville  &  Nashville  Railroad  Co.  v. 
Behlmer,  175  U.  S.  648.  20  Sup.  Ct.  209,  44  L.  Ed.  309 ;  East 
Tennessee,  Virginia  &  Georgia  Railway  Company  v.  Interstate 
Commerce  Commission,  181  U.  S.  1,  21  Sup.  Ct.  516,  45  L.  Ed. 
719 ;  Texas  &  Pacific  Railway  Co.  v.  Interstate  Commerce  Com- 
mission, 162  U.  S.  197,  16  Sup.  Ct.  666,  40  L.  Ed.  940;  Inter- 
state Commerce  Commission  v.  Louisville  &  Nashville  Railroad 
Co.,  190  U.  S.  273,  23  Sup.  Ct.  687,  47  L.  Ed.  1047.  The  Su- 
preme Court  has  also  held  that  it  may  be  presumed  that  Con- 
gress, in  adopting  the  language  of  the  English  act,  had  in  mind 
the  construction  given  to  the  words  "undue  preference"  by  the 
courts  of  England.  Interstate  Commerce  Commission  v.  B.  & 
0.  Ry.  Co.,  145  U.  S.  284,  12  Sup.  Ct.  844,  36  L.  Ed.  699. 

"None  of  the  above  factors  alone  are  considered  necessarily 
controlling  by  the  authorities.  Neither  are  they  all  controlling 
as  a  matter  of  law.  It  is  a  question  of  fact  to  be  decided  by  the 
proper  tribunal  in  each  case  as  to  what  is  controlling." 

The  Commission  in  Delaware  State  Grange  v.  New  York,  P. 
&  N.  R.  Co.,  4  I.  C.  C.  R.  588,  3  I.  C.  R.  554,  560,  561,  speaking 
of  the  general  principles  to  be  considered  in  rate  making,  says: 

"The  mandate  of  the  statute  is  that  all  rates  must  be  reason- 
able and  just,  but  how  the  reasonableness  and  justice  of  a  rate 
are  to  be  determined  is  not  prescribed  by  the  statute,  nor  has 
any  satisfactory  test  been  evolved  by  transportation  experts. 
Conflicts  about  rates  arise  from  the  conflicting  interests  of  car- 
riers and  shippers.  As  carriers  make  their  o\^ti  rates,  they 
have  primary  regard  for  their  own  interests,  and  often  give  less 
weight  than  they  ought  to  the  interests  of  those  they  serve.  This 
is  more  frequently  the  case  in  the  absence  of  competition.  Under 
stress  of  competition,  or  sometimes  for  the  purpose  of  develop- 
ing business,  rates  that  are  equitable  or  even  very  low  are  likely 
to  be  made.  But  ^Yhen  a  controversy  arises  between  the  public 
and  a  carrier,  the  question  of  the  reasonable  limit  of  a  rate 
usually  involves  many  considerations,  and  is  often  difficult  to 
determine.  A  rate  that  might  be  regarded  as  reasonable  and 
just  by  a  producer  and  shipper,  might,  from  a  carrier's  stand- 


§  67.]  Charges  by  Common  Carriers  139 

point,  be  deemed  extremely  unreasonable  and  unjust,  and,  so, 
conversely,  a  rate  that  a  carrier  might  claim  to  be  reasonable  in 
itself,  and  that  it  might  support  with  strong  reasons  based 
upon  the  cost  of  the  service,  the  quantity  of  the  business  and 
the  characteristics  of  its  line  of  road,  might  exhaust  the  greater 
part  of  the  proceeds  of  the  producer's  commodity  and  be  de- 
structive to  his  interests.  It  is  only  stating  a  truism,  therefore, 
to  say  there  is  no  recognized  test  of  a  rate  mutually  reason- 
able for  a  carrier  and  for  the  producer  of  the  traffic. 

"The  reasonableness  of  a  rate  must  consequently  be  ascer- 
tained in  every  instance  in  which  the  question  arises,  by  its 
relations  both  to  the  carrier  and  to  the  shipper,  and  by  compar- 
ison with  rates  normally  charged  for  like  or  similar  service." 

In  Thompson  Lumber  Co.  v.  Illinois  C.  R.  Co.,  13  I.  C.  C.  R. 
657,  664,  the  commission  says : 

' '  In  determining  what  is  a  reasonable  and  just  rate  many  con- 
siderations are  involved.  Among  these  are  the  general  financial 
and  physical  condition  of  the  road,  the  character  of  the  com- 
modity in  question,  whether  it  constitutes  a  large  or  small  part 
of  the  business  of  the  carrier,  whether  it  is  economical  or  ex- 
pensive to  handle,  how  it  compares  with  other  commodities 
hauled,  and,  as  evidencing  the  railroad's  own  judgment,  whether 
a  different  rate  has  been  in  effect  on  this  commodity  at  some 
other  time." 

Cost  and  value  of  service  are  discussed  by  the  commission  in 
Boston  Chamber  of  Commerce  v.  Lake  Shore  &  M.  S.  R.  Co., 
1  I.  C.  C.  R.  436,  1  I.  C.  R.  754,  760,  761,  as  follows: 

"The  element  of  cost  of  service  which  may  at  one  period  have 
been  recognized  as  controlling  in  fixing  rates  has  long  ceased  to 
be  regarded  as  the  sole  or  most  important  factor  for  that  pur- 
pose. The  value  of  the  service  with  respect  to  the  articles  car- 
ried, the  volume  of  business,  and  the  conditions  and  force  of 
competition  are  justly  considered  to  have  controlling  weight  in 
determining  the  charges  for  transportation.  But  even  with  re- 
gard to  the  cost  of  service  the  cost  is  at  least  somewhat  greater 
to  Boston  than  to  New  York. ' ' 

"What  interests  should  be  considered  is  quoted  from  the  Su- 
preme Court  by  the  commission  in  Mayor  etc.  of  Tifton  v.  Louis- 
ville &  N.  R.  Co.,  9  I.  C.  C.  R.  160,  178,  189,  as  follows: 

"It  was  said  by  the  Supreme  Court  of  the  United  States  in  the 
case  of  Texas  &  P.  R.  Co.  v.  Interstate  Commerce  Commission, 


140  Must  be  Reasonable.  [§  G7. 

162  U.  S.  197,  40  L.  Ed.  940,  5  I.  C.  C.  Rep.  405,  16  Sup.  Ct. 
Rep.  666: 

"  'In  passing  upon  questions  arising  under  the  act,  tlie  tri- 
bunal appointed  to  enforce  its  provisions,  whether  the  commis- 
sion or  the  courts,  is  empowered  to  fully  consider  all  the  cir- 
cumstances and  conditions  that  reasonably  apply  to  the  situa- 
tion, and  that,  in  the  exercise  of  its  jurisdiction,  the  tribunal 
may  and  should  consider  the  legitimate  interests  as  well  of  the 
carrying  companies  as  of  the  traders  and  shippers,  and  in  con- 
sidering whether  any  particular  locality  is  subjected  to  an 
undue  preference  or  disadvantage  the  welfare  of  the  communi- 
ties occupying  the  localities  where  the  goods  are  delivered  is  to 
be  considered  as  well  as  that  of  the  communities  which  are  in  the 
locality  of  the  place  of  shipment." 

AVith  reference  to  a  rate  "in  and  of  itself,"  the  commission 
in  Tileston  I\Iill  Co.  v.  Northern  P.  R.  Co.,  8  I.  C.  C.  R.  346, 
361,  says: 

"It  is  said  that  the  rate  from  St.  Cloud  is  reasonable  in  and 
of  itself.  A  rate  can  seldom  be  considered  "in  and  of  itself." 
It  must  be  taken  almost  invariably  in  relation  to  and  in  connec- 
tion wdtli  other  rates.  The  freight  rates  of  this  country,  both 
upon  different  commodities  and  between  different  localities,  are 
largely  inter-dependent,  and  it  is  the  fact  that  they  do  not 
bear  a  proper  relation  to  one  another,  rather  than  the  fact  that 
they  are  absolutely  either  too  low  or  too  high,  which  most  often 
gives  occasion  for  complaint." 

In  Cattle  Raisers'  Asso.  v.  Missouri,  K.  &  T.  R.  Co.,  11  I.  C. 
C.  R.  296,  the  commission  discusses  the  cost  to  the  carriers  at 
originating  and  delivering  points,  cost  and  maintenance  of 
equipment,  expense  of  loading  and  reloading  in  transit  incident 
to  feeding,  watering  and  resting  the  stock,  character  of  the  move- 
ment, number  of  cars  in  trains,  average  loading,  volume  and 
desirability  of  the  traffic,  return  of  empty  cars,  liability  to  dam- 
age, cost  of  carriage,  increased  cost  of  producing  live  stock,  de- 
creased selling  price,  method  of  making  the  advanced  rates,  dis- 
appearance of  competition,  cost  of  railroad  labor  and  supplies, 
improved  methods  of  operation  and  increased  general  traffic, 
mileage  revenue  per  ton  per  car  and  per  train,  and  other  perti- 
nent circumstances  and  conditions. 

In  the  investigation  of  these  questions  the  commission  is  not 
hampered  by  technical  rules.    The  Supreme  Court,  in  Int.  Com. 


§  67.]  Charges  by  Common  Carriers  141 

Com.  V.  Baird,  194  U.  S.  25,  44,  48  L.  Ed.  860,  869,  24  Sup.  Ct. 
563,  says : 

"The  inquiry  of  a  board  of  the  character  of  the  Interstate 
Commerce  Commission  should  not  be  too  narrowly  constrained 
by  teclmical  rules  as  to  the  admissibility  of  proof.  Its  function 
is  largely  one  of  investigation,  and  it  should  not  be  hampered 
in  making  inquiry  pertaining  to  interstate  commerce  by  those 
narrow  rules  which  prevail  in  trials  at  common  law,  where  a 
strict  correspondence  is  required  between  allegation  and  proof." 


CHAPTER  III. 
EQUALITY  IN  RATES. 

§  75.     Common  law  as  to  equality  in  rates  by  common  carriers. 

76.  Comparison  of  the  English  railway  and  canal  act  with  the  act  to 

regulate  commerce. 

77.  Discrimination  forbidden. 

78.  .  Discrimination  against  individuals. 

79.  Undue  preference  in  favor  of  persons,  localities  or  traffic. 

80.  Facilities  for  interchange  of  tratific  and  rates  and  charges  to  con- 

necting lines  must  be  without  undue  or  unreasonable  preference. 

81.  Discrimination  by  charging  more  for  a  shorter  than  a  longer  haul. 

82.  Discrimination  between  car  loads  and  less  than  car  loads. 

83.  Classification  of  commodities  should  be  without  discrimination. 

84.  Milling  in  transit. 

85.  Eebilling  illegal  and  discriminatory. 

86.  Discrimination   by   making  payments   to   elevators   and   others   ele- 

vating and  sacking  grain. 

87.  Cars  must  be  furnished  \^'ithout  discrimination. 

88.  Right  of  carrier  to  route  shipments  beyond  its  own  terminus. 

89.  Discrimination  in  billing. 

90.  Tariffs  of  rates  must  be  printed,  posted  and  maintained. 

91.  Different  rates  over  the  same  line  in  opposite  directions. 

92.  Discrimination  by  granting  free  service. 

93.  Commodities  clause — Illegal  for  carriers  to  transport  commodities 

produced  or  owned  by  them  or  in  which  they  are  interested. 

94.  Basing  points  and  group  rates. 

95.  Rebates. 

§  75.  Common  law  as  to  equality  in  rates  by  carriers. — The 
common  law  rule  as  to  the  reasonableness  of  rates  we  have  seen 
infra  was  undisputed.  Equality  in  rates  was  not  so  definitely 
provided  for  in  that  system  of  laAvs,  and  it  has  been  doubted 
whether  or  not  a  carrier  was  bound  to  charge  equal  rates  to  all 
its  customers.    Discussing  this  question  Mr.  Justice  BrowTi  said :  ^ 

"Prior  to  the  enactment  of  the  act  of  February  4,  1887  (24 
Stat,  at  L.  379),  to  regulate  commerce,  commonly  known  as  the 
Interstate  Commerce  Act,  railway  traffic  in   this  country  was 

'Int.  Com.  Com.  v.  Baltimore  &  699,  703,  12  Sup.  Ct.  844.  See  3 
O.  R.  Co.,  145  U.  S.  263,  36  L.  Ed.      Fed.  Stat.  Ann.  813. 

142 


§  75.]  Equality  in  Rates.  143 

regulated  by  the  principles  of  the  common  law  applicable  to 
common  carriers,  which  demanded  little  more  than  that  they 
should  carry  for  all  persons  who  applied,  in  the  order  in  which 
the  goods  were  delivered  at  the  particular  station,  and  that 
their  charges  for  transportation  should  be  reasonable.  It  was 
even  doubted  whether  they  were  bound  to  make  the  same  charge 
to  all  persons  for  the  same  service:  (Fitchburg  R.  Co.  v.  Gage, 
12  Gray,  393 ;  Baxendale  v.  Eastern  Counties  R.  Co.  4  C.  B.  N. 
S.  63 ;  Great  Western  R.  Co.  v.  Sutton,  L.  R.  4  H.  L.  226,  237 ; 
Ex  parte  Benson,  18  S.  C.  38;  Johnson  v.  Pensacola  &  P.  R.  Co., 
16  Fla.  623)  ;  though  the  weight  of  authority  in  this  country  was 
in  favor  of  an  equality  of  charge  to  all  persons  for  similar  ser- 
vices." 

Neither  under  our  statute  nor  under  the  common  law  is  mere 
discrimination  prohibited,  but  it  will  be  fomad  upon  an  examina- 
tion of  the  English  authorities,  that  where  the  circumstances 
and  conditions  were  the  same  those  who  dealt  with  a  common 
carrier  were  entitled  to  equal  treatment.  In  Parsons  v.  Chicago 
&  N.  W.  R.  Co.,^  the  Supreme  Court,  having  imder  discussion  a 
suit  brought  under  an  Iowa  statute,  said : 

"We  remark  again  that  there  is  no  averment  in  this  petition 
that  the  rates  charged  to  and  paid  by  the  plaintiff  were,  in  them- 
selves, imreasonable ;  that  is,  it  is  not  claimed  that  the  rates 
charged  for  shipping  corn  from  points  in  Iowa  to  Chicago  were 
not  fair  and  reasonable  charges  for  the  services  rendered.  The 
burden  of  the  complaint  is  the  partiality  and  favoritism  shown 
to  places  and  shippers  in  Nebraska.  The  plaintiff  is  not  seek- 
ing to  recover  money  which  inequitably  and  without  full  value 
given  has  been  taken  from  him.  He  is  only  seeking  to  recover 
money  which  he  alleges  in  due,  not  because  of  any  unreasonable 
charge,  but  on  account  of  the  wrongful  conduct  of  the  defendant. 

"Again,  his  cause  of  action  is  based  entirely  on  a  statute,  and 
to  enforce  what  is  in  its  nature  a  penalty.  Suppose  that  the  of- 
ficials of  the  defendant  company  had  charged  the  plaintiff  only 
a  reasonable  rate  for  his  personal  transportation  from  his  home 
in  Iowa  to  Chicago,  and  at  the  same  time  had,  without  any  just 
occasion  therefor,  given  to  his  neighbor  across  the  street  free 
transportation,  thus  being  guilty  of  an  act  of  favoritism  and 
partiality — an  act  which  tended  to  diminish  the  receipts  of  the 

«1G7  U.   S.   447,  42  L.   Ed.   231,  17  Sup.  Ct.  887. 


1-44  Equality  in  Rates.  [§  75. 

railroad  company,  and  to  that  extent  the  dividends  of  its  stock- 
holders— such  partiality  on  their  part  would  not,  in  the  absence 
of  a  statute,  have  enabled  the  plaintiff  to  maintain  an  action  for 
the  recovery  of  the  fare  which  he  had  paid,  and  thus  to  reduce 
still  further  the  dividends  to  the  stocldiolders. " 

The  illustration  used  in  the  foregoing  quotation  by  Mr.  Justice 
Brewer  should  not  be  applied  generally.  "Where  as  under  the 
Constitution  of  the  United  States  a  schedule  of  rates  may  not 
be  fixed  less  than  will  yield  a  fair  return  on  the  property  em- 
ployed in  the  public  use,  every  customer  of  a  public  carrier  is, 
to  some  extent,  interested  in  what  it  charges  every  one  else.  It 
is  true  that  an  individual  may  not  have  a  cause  of  action  so  long 
as  what  he  pays  is  reasonable,  unless  the  preference  granted 
others  may  damage  him.  If  in  the  case  cited  the  plaintiff  had 
made  a  shipment  under  the  same  conditions  as  a  competitor  and 
for  the  same  service  had  paid  more  than  such  competitor,  he 
probably  would  have  been  entitled  to  recover.  The  further  dis- 
cussion of  the  case  by  Mr.  Justice  Brewer  shows  this  to  have  been 
his  idea.    He  says: 

"Every  fact  which  he  alleges  might  be  absolutely  and  fully 
true,  and  yet  he,  with  Imowledge  of  the  joint  tariff,  with  the 
privilege  of  shipping  under  it,  have  never  offered  or  sought  to 
forward  a  single  pound  of  corn  to  any  other  place  than  Chi- 
cago. Surely  it  needs  but  the  statement  of  this  to  show  that  he 
comes  far  short  of  that  rule  of  strict  proof  which  enables  one  to 
enforce  a  penalty  for  wrong;  for,  if  he  would  not  under  any 
circumstances  have  shipped  to  New  York,  was  compelled  by  his 
contracts  or  any  other  consideration  to  ship  to  Chicago,  he  can 
not  say  that  he  was  injured  by  his  ignorance  of  the  rate  to  New 
York.  The  only  right  of  recovery  given  by  the  Interstate  Com- 
merce Act  to  the  individual  is  to  the  "person  or  persons  injured 
thereby,  for  the  full  amount  of  damages  sustained  in  conse- 
quence of  any  of  the  violations  of  the  provisions  of  this  act." 
So,  before  any  party  can  recover  under  the  act  he  must  show, 
not  merely  the  wrong  of  the  carrier,  but  that  that  wrong  has  in 
fact  operated  to  his  injury.  If  he  had  shipped  to  New  York 
and  been  charged  local  rates  he  might  have  recovered  any  ex- 
cess thereon  over  through  rates.  He  did  not  ship  to  New  York 
and  yet  seeks  to  recover  the  extra  sum  he  might  have  been 
charged  if  he  had  shipped.  Penalties  are  not  recoverable  on 
mere  possibilities." 


§  76.]  Equality  in  Eates.  145 

That  the  common  law  required  equality  of  service  and  charges 
imcler  the  same  or  similar  circumstances  is  more  clearly  appar- 
ent from  a  subsequent  decision  of  the  Supreme  Court  in  Western 
Union  Tel.  Co.  v.  Call  Publishing  Co.,^  where  the  same  eminent 
justice  who  wrote  the  opinion  in  the  Parsons  case,  supra,  said : 

"Common  carriers,  whether  engaged  in  interstate  commerce 
or  in  that  wholly  within  the  state,  are  performing  a  public 
service.  They  are  endowed  by  the  state  with  some  of  its  sover- 
eign powers,  such  as  the  right  of  eminent  domain,  and  so  en- 
dowed by  reason  of  the  public  service  they  render.  As  a  conse- 
quence of  this,  all  individuals  have  equal  rights  both  in  respect 
to  service  and  charges.  Of  course,  such  equality  of  right  does 
not  prevent  differences  in  the  modes  and  kinds  of  service  and 
different  charges  based  thereon.  There  is  no  cast  iron  line  of 
uniformity  which  prevents  a  charge  from  being  above  or  below 
a  particular  sum,  or  requires  that  the  service  shall  be  exactly 
along  the  same  lines.  But  that  principle  of  equality  does  for- 
bid any  difference  in  charge  which  is  not  based  upon  difference 
in  service,  and,  even  when  based  upon  difference  of  service,  must 
have  some  reasonable  relation  to  the  amount  of  difference,  and 
can  not  be  so  great  as  to  produce  an  unjust  discrimination.  To 
affirm  that  a  condition  of  things  exists  under  which  common 
carriers  anywhere  in  the  country,  engaged  in  any  form  of  trans- 
portation, are  relieved  from  the  burdens  of  these  obligations,  is 
a  proposition  which,  to  say  the  least,  is  startling." 

Further  in  the  opinion  it  was  stated  that  "the  principles  of 
the  common  law  are  operative  upon  all  interstate  commercial 
transactions,  except  so  far  as  they  are  modified  by  congressional 
action,"  and,  we  may  conclude,  that  such  principles  required 
"equal  rights  both  in  respect  to  service  and  charges,"  when  the 
circumstances  and  conditions  were  the  same;  and  where  the 
circumstances  and  conditions  were  different,  the  difference  in 
service  and  charges  should  bear  a  reasonable  relation  thereto. 

§  76.  Comparison  of  the  English  Raiway  and  Canal  Act  with 
Act  to  Regulate  Commerce. — The  remark  of  the  Supreme  Court 
in  Int.  Com.  Com.  v.  Baltimore  &  0.  R.  Co.,*  "that  Congress 
in  adopting  the  language  of  the  English  act.  had  in  mind  the 


'181  U.  S.  92,  45  L.  Ed.  765,  21  *  Int.   Com.    Com.   v.   Baltimore   & 

Sup.  Ct.  561.  O.  R.  Co.,  145  U.  S.  263,  36  L.  Ed. 

699,  703,  12  Sup.  Ct.  844. 


146  Equality  in  Rates.  [§  76. 

construction  given  to  these  words  by  tlic  English  courts"  had 
reference  to  section  three  of  our  act,  though  to  a  less  extent  the 
same  could  be  said  of  section  two. 

Section  two  of  the  act  of  February  4,  1887,  post,  §  508,  known 
as  the  unjust  discrimination  clause,  is  based  upon  §  90  of  the 
English  Railway  Clauses  Act  of  1845.^  The  section  of  the  English 
act,  called  the  Equality  Clause,  provided  that  "tolls  be  at  all 
times  charged  equally  to  all  persons,  and  after  the  same  rate, 
whether  per  ton  per  mile  or  otherwise,  in  respect  of  all  passen- 
gers, and  of  all  goods  or  carriages  of  the  same  description,  and 
conveyed  or  propelled  by  a  like  carriage  or  engine,  passing  only 
over  the  same  portion  of  the  line  of  railway  under  the  same  cir- 
cumstances. Section  two  of  the  Interstate  Commerce  Act  used 
the  words  "under  substantially  similar  circumstances  and  condi- 
tions," which  phrase  is  not  so  exclusive  as  the  words  of  the 
English  act  which  requires  equality  only  when  the  transporta- 
tion is  "over  the  same  portion  of  the  line  of  railway."  The 
American  act  is,  therefore,  broader  in  its  scope  than  the  English 
act,  but  each  act  recognized  that  "different  circumstances"  may 
justify  different  rates.  The  English  statute  uses  the  word 
"same"  before  "circumstances,"  ours  uses  the  word  "similar." 
This  difference  and  the  broader  scope  of  the  American  act 
should  be  kept  in  mind  w^hen  considering  the  English  decisions. 
Section  two  of  the  English  Railway  and  Canal  Traffic  Act  of 
1854,°  furnished  the  model  of  section  three  of  our  act.''  The 
English  and  the  American  sections  just  referred  to  are  each  des- 
ignated as  the  "undue  preference  clause."  The  fourth  section 
of  the  American  act,  known  as  the  "long  and  short  haul  clause," 
was  imlike  any  section  of  the  English  act  prior  to  1887.  In  1888 
the  Railway  and  Canal  Traffic  Act  of  that  year  gave  the  English 
Commissioners  power  to  prohibit  a  higher  charge  for  a  less  dis- 
tance where  the  service  is  similar.  The  provision  is  the  third 
paragraph  of  section  twenty-seven  and  reads  as  follows: " 

"The  court  or  the  commissioners  shall  have  the  power  to  di- 

' Browne     &     Theobald     Law     of  ^  Post  §  509,  note*,  supra. 

Eailways    (Englisli)   p.  312.     Tram-  ^Browne    &    Theobald,    supra,    p. 

mell,     Eailroad     Commissioners     of  771 ;  see  also  sections  25  to  27  Eng- 

Georgia  v.  Clyde  S.  S.  Co.,  5  I.  C.  lish  Railway  and  Canal  Traflfie  Act 

C.  E.  324,  4  I.  C.  E.  120,  140.  of  1888  Browne  &  Theobald,  pp.  765 

*  Browne    &    Theobald,    supra,    p.  to  772. 
405.     Trammell  Case,  supra,  note  °. 


§  77.]  Equality  in  Rates.  147 

rect  that  no  higher  charge  shall  be  made  to  any  person  for  ser- 
vices in  respect  of  merchandise  carried  over  a  less  distance  than 
is  made  to  any  other  person  for  similar  services  in  respect  of 
the  like  description  and  quantity  of  merchandise  carried  over  a 
greater  distance  on  the  same  line  of  railway." 

This  comparison  may  be  concluded  by  quoting  the  language 
of  the  conunission  as  follows :" 

''In  a  case  purely  of  alleged  undue  preference  or  prejudice 
the  English  cases  have  direct  application.  Even  in  cases  under 
our  second  and  fourth  sections,  English  cases  brought  under 
the  undue  preference  clause  in  which  the  decision  has  held 
imdue  preference  to  exist,  have  value  as  showing  how  strictly 
the  English  commission  or  court  has  applied  the  broad  language 
of  the  clause  to  a  particular  set  of  facts,  but  when  English  de- 
cisions under  the  undue  preference  clause  are  cited  by  a  carrier 
in  justification  of  its  action  under  the  strict  language  of  our 
second  and  fourth  sections,  the  citations  have  greatly  diminished 
force.  These  sections  apply  only  against  rates  in  specific  cases, 
but  the  luidue  preference  clause  or  third  section  is  inclusive; 
it  applies  both  to  rates  and  facilities,  and  says  generally  to  the 
carrier,  you  shall  not  in  any  manner  unduly  prefer  one  person 
or  kind  of  traffic  over  another,  and  leaves,  it  to  the  commission 
or  the  court  to  say  when  the  undue  preference  is  given.  In  the 
second  and  fourth  sections  what  is  unlawful  is  clearly  defined, 
the  circumstances  and  conditions  of  the  transportation  being 
similar  in  substance.  We  think,  therefore,  that  while  English 
cases  are  valuable  as  defining  undue  preference  or  prejudice 
their  value  is  greatly  limited  in  cases  where  the  statute  itself  de- 
scribes the  offense  it  declares  unlawful." 

§  77.  Discrimination  forbidden. — Equality  of  rights  and  priv- 
ileges under  "substantially  similar  circumstances  and  condi- 
tions" is  sought  to  be  guaranteed  shippers  and  "particular  de- 
scriptions of  traffic"  by  sections  two,  three  and  four  of  the  act 
to  regulate  commerce.  These  sections,  which  were  in  the  orig- 
inal act  and  have  been  retained  in  the  amendments,  announce 
the  principles  of  law  fixing  equality  of  charges  and  service  by 
common  carriers.  These  principles  are  supported  and  enforced 
by  the  provisions  of  the  act  to  regulate  commerce  which  prohibit 


» Tranime]],    Ejiilroad    Commission       C.   C.   R.   324,  4   I.   C.   R.   120,   143, 
of  Georgia  v.  Clyde  S.   S.  Co.,  5  I.       144. 


148  Equality  in  Rates.  [§  77. 

free  passes,  except  under  certain  prescribed  limitations,  prohibit 
carriers  from  transportini?  commodities  in  which  they  are  in- 
terested; require  the  making  of  switch  connections;  making 
criminal  the  pooling  of  freights ;  require  schedules  of  rates  to  be 
printed,  posted  and  maintained;  prevent  changes  in  rates  with- 
out at  least  thirty  days  notice ;  provide  punishment  for  granting, 
receiving,  or  inducing  the  payment  of  rebates;  punish  false 
billing;  require  witnesses  to  testify,  and  prescribe  methods  of 
procedure  for  the  public  enforcement  of  the  act  and  the  protec- 
tion of  individuals  who  may  suffer  from  its  violation. 

Inequality  of  charges  is  an  evil  that  is  more  readily  seen  and 
keenly  felt  than  are  charges  unjustly  high.  A  difference  in  a 
freight  charge  of  a  few  cents  per  hundred  pounds  on  a  particular 
commodity  may  mark  the  line  between  a  reasonable  and  an  un- 
reasonable rate  and  the  higher  charge  may  be  unjust  and  unrea- 
sonable. The  injustice,  however,  is  so  distributed  that  no  one 
feels  seriously  hurt  and  no  complaint  is  made.  A  preferentiaj 
or  discriminatory  charge  may  make  or  unmake  cities  and  busi- 
nesses and  hurts  some  to  the  benefit  of  others.  Such  charges, 
therefore,  are  not  only  imjust  and  contrary  to  the  very  spirit 
of  the  American  people,  but  they  are  sufficiently  injurious  to 
arouse  to  action  those  who  are  injured.  The  consumer  usually 
pays  the  unjustly  high  rate,  but  the  individual  or  the  community 
is  injured,  sometimes  ruined,  by  the  discriminatory  rate.  Under 
the  once  prevalent  system  of  rebating,  businesses  were  built  up 
or  destroyed  bj^  carriers.  Even  since  rebating  has  practically 
ceased,  cities  are  helped  or  injured  by  privileges  given  the  one 
and  withheld  from  the  other.  Rarely  would  carriers  have  com- 
plaints of  rates  if  all  rates  and  practices  were  adjusted  without 
undue  discrimination  and  luijust  preference.  Speaking  of  the 
evils  existing  before  the  act  to  regulate  commerce  was  passed  by 
Congress  and  which  evils  the  states  had  ineffectually  attempted 
to  remedy,  the  Supreme  Court  said :  " 

"These  evils  ordinarily  took  the  shape  of  inequality  of  charges 
made,  or  of  facilities  furnished,  and  were  usually  dictated  by  or 
tolerated  for  the  promotion  of  the  interests  of  the  officers  of  the 
corporation  or  of  the  corporation  itself,  or  for  the  benefit  of  some 
favored  persons  at  the  expense  of  others,  or  of  some  particular 

1"  lut.  Com.   Com.  v.  Baltimore  &      699,  703,  12  Sup.  Ct.  844. 
O.  E.  Co.,  145  U.  S.  263,  36  L.  Ed. 


§  78.]  Equality  in  Rates.  149 

locality  or  community,  or  of  some  local  trade  or  commercial  con- 
nection, or  for  the  destruction  or  crippling  of  some  rival  or 
hostile  line." 

The  problem  of  giving  shippers  a  just  equality  is  not  an  easy 
one  of  solution  by  the  carriers.  It  is  easier  to  know  what  is  just 
equality  than  to  adopt  such  rates  and  practices  as  will  accom- 
plish that  end.  Long  existing  injustice  is  hard  to  dislodge.  A 
particular  discrimination  that  has  long  continued  in  favor  of 
a  community,  has  become  in  the  eyes  of  that  community  a  vested 
right.  It  is  hard  for  the  beneficiary  of  a  wrong  to  see  that 
WTongs  do  not  become  rights  by  mere  lapse  of  time.  Carriers 
frequently  welcome  the  aid  of  the  commission  to  help  rid  them- 
selves of  practices  that  are  im justly  discriminatory. 

§  78.  Discrimination  against  individuals. — Section  two  of  the 
act  to  regulate  commerce,  post  §  508,  was  intended  to  prevent 
different  charges  for  services  rendered  one  person  than  were 
charged  to  another  person  for  a  like  and  contemporaneous  ser- 
vice of  a  like  kind  of  traffic  imder  substantially  similar  circum- 
stances and  conditions.  Under  the  "same  circumstances"  and 
"goods  of  the  same  description"  used  in  the  English  law  are  not 
used  with  reference  to  the  contents  of  the  parcels  but  to  the 
parcels  themselves,  that  is,  like  or  different  for  the  purposes  of 
carriage.  They  are  also  used  with  reference  to  the  conversance 
of  goods  and  not  to  the  persons  themselves."  This  means,  and 
the  act  to  regulate  commerce  has  also  been  so  construed,  that 
competition,  however  great,  can  not  justify  charges  to  one  per- 
son greater  than  those  to  another.  Two  shippers,  shipping  a 
like  kind  of  traffic  at  the  same  time,  over  the  same  road,  are 
entitled  to  the  same  rate.  It  makes  no  difference  that  one  may 
be  in  a  position  to  ship  over  another  line,  or  that  his  total  ship- 
ments may  greatly  exceed  those  of  the  other.  In  Wight  v. 
United  States,"  the  Supreme  Court,  speaking  of  the  phrase 
"under  substantially  similar  circumstances  and  conditions," 
says: 

"For  this  case,  it  is  enough  to  hold  that  that  phrase  as  found 
in  section  2,  refers  to  the  matter  of  carriage,  and  does  not  in- 
clude competition." 

"  G.  W.   By.  V.   Sutton,   38   L.   .T.  17  Sup.  Ct.  822.     Seo  also  Int.  Com. 

Ex.  177,  L.  R.  4  H.  L.  226,  22  L.  T.  Com.  v.  Detroit,  G.  K.  &  M.  %.  Co., 

4.3,  18  W.  R.  92.  167  U.  S.   G.3.3,  G44,  42  L.  Ed".  30G, 

"1G7   U.   S.   512,  42   L.   Ed.   258,  310,  17  Sup.  Ct.  986. 


150  Equality  in  Kates.  [§  78. 

In  Int.  Com.  Com.  v.  Alabama  M.  R.  Co."  the  Supreme  Court 
advances  the  same  ruling  as  follows : 

"To  prevent  misapprehension,  it  should  be  stated  that  the 
conclusion  to  which  we  are  led  by  these  cases,  that,  in  applying 
the  provisions  of  the  3d  and  4th  sections  of  the  act,  which  make 
it  unlawful  for  common  carriers  to  make  or  give  any  undue  or 
mireasonable  preference  or  advantage  to  any  particular  person 
or  locality,  or  to  charge  or  receive  any  greater  compensation 
in  the  aggegate  for  the  transportation  of  passengers  or  of  like- 
kind  of  property,  under  substantially  similar  circumstances  and 
conditions,  for  a  shorter  than  a  longer  distance  over  the  same 
line,  in  the  same  direction,  competition  which  affects  rates  is  one 
of  the  matters  to  be  considered,  is  not  applicable  to  the  2d  section 
of  the  act. 

"As  we  have  shown  in  the  recent  case  of  Wight  v.  United 
States,  167  U.  S.  512  (42  L.  Ed.  258,  17  Sup.  Ct.  822),  the  pur- 
pose of  the  second  section  is  to  enforce  equality  between  shippers 
over  the  same  line,  and  to  prohibit  any  rebate  or  other  device  by 
which  two  shippers,  shipping  over  the  same  line,  the  same  dis- 
tance, under  the  same  circumstances  of  carriage,  are  compelled 
to  pay  different  prices  therefor,  and  we  there  held  that  the 
phrase  "imder  substantially  similar  circumstances  and  condi- 
tions," as  used  in  the  second  section,  refers  to  the  matter  of  car- 
riage, and  does  not  include  competition  between  rival  routes. 

"This  view  is  not  open  to  the  criticism  that  different  mean- 
ings are  attributed  to  the  same  w^ords  when  found  in  different 
sections  of  the  act ;  for  what  w-e  hold  is  that,  as  the  purposes  of 
the  several  sections  are  different,  the  phrase  under  consideration 
must  be  read,  in  the  second  section,  as  restricted  to  the  case  of 
shippers  over  the  same  road,  thus  leaving  no  room  for  the  opera- 
tion of  competition,  but  that  in  the  other  sections,  which  cover 
the  entire  tract  of  interstate  and  foreign  commerce,  a  meaning 
must  be  given  to  the  phrase  wide  enough  to  include  all  the  facts 
that  have  a  legitimate  bearing  on  the  situation — among  which 
we  find  the  fact  of  competition  when  it  affects  rates." 

Kirkman,  in  the  Science  of  Railways,  vigorously  argues  against 
any  governmental  regulation  of  railroads,  but  he  admits  that 
there  is  no  justice  in  distinguishing  between  persons.    He  says :  " 

"Int.   Com.   Com.  v.  Alabama  M.  "Vol.  8,  p.  110. 

Ey.  Co.,  168  U.   S.  144,  42  L.  Ed. 

414,  18  Sup.  Ct.  45. 


§  78,]  Equality  in  Rates.  151 

''If  a  railroad  refuses  to  one  shipper  what  it  concedes  to 
another,  everything  being  alike,  article,  place,  time,  quantity, 
risk,  and  service,  that  is  not  discrimination,  but  robbery.  Petty 
instances  of  this  kind  have  occurred  in  the  history  of  railway 
management.  But  they  are  only  instances.  They  are,  however, 
the  stock  in  trade  of  railway  critics.  They  are  unworthy  of 
notice.  They  form  no  appreciable  element,  and  are  not  to  be 
compared  for  a  moment  to  the  benefits  that  grow  out  of  the 
ability  of  carriers  to  adapt  their  properties  to  the  varying  needs 
of  those  they  serve." 

In  Capital  City  Gas  Co.  v.  Central  V.  R.  Co.,'*  Mr.  Commis- 
sioner Knapp,  speaking  for  the  commission  and  having  under 
consideration  rates,  one  of  which  was  made  for  coal  when  de- 
livered to  a  connecting  carrier  for  "railroad  supply,"  and  the 
other  and  higher  of  which  was  a  combination  rate  applicable  to 
coal  used  for  commercial  purposes  and  purposes  other  than 
"railroad  supply,"  said: 

"When  bituminous  coal  is  carried  by  defendants  from  Nor- 
wood to  Montpelier  the  service  is  performed  under  substantially 
similar  circumstances  and  conditions  whether  transported  for  a 

connecting  railroad  or  for  complainant  and  other  consumers.  * 
******** 

"We  are  constrained  to  hold  that  these  facts,  which  are 
wholly  undisputed,  establish  a  discrimination  forbidden  by  the 
second  section  of  the  act.  In  transporting  bituminous  coal  from 
Norwood  to  Montpelier  at  90  cents  a  ton  for  "railroad  supply" 
the  same  service  is  performed  and  the  circumstances  and  condi- 
tions of  carriage  are  the  same  in  every  material  effect  as  in 
transporting  coal  at  $1.85  per  ton  for  complainant  and  other 
consignees.  This  appears  to  be  conceded  since  no  proof  was  of- 
fered that  the  fact  is  otherwise.  It  follows,  as  we  think,  that 
the  difference  in  rates  is  a  violation  of  the  statute. 

Wight  v.  United  States,  167  U.  S.  512,  42  L.  Ed.  258,  17  Sup. 
Ct.  Rep.  822 ;  Interstate  Commerce  Commission  v.  Alabama 
Midland  R.  Co.,  168  U.  S.  144,  166,  42  L.  Ed.  414,  423,  18  Sup. 
Ct.  Rep.  45. 

In  the  former  case  it  was  held  that  the  phrase  "under  substan- 
tially similar  circumstances  and  conditions,"  as  used  in  the  sec- 
ond section,  refers  to  the  matter  of  carriage,  and  the  decision 

"  11  I.  C.  C.  E.  104,  105,  106,  107. 


152  Equality  in  Rates.  [§  79. 

therein  rendered,  as  explained  and  confirmed  in  the  subsequent 
ease,  condemns  as  nnhnvful  the  discriminating  charges  here 
considered.  It  is  not  permissible  under  this  section  for  two  or 
more  carriers  to  establish  a  joint  through  rate,  less  than  the 
sum  of  their  locals,  which  is  available  only  to  a  particular 
shipper  or  class  of  shippers,  while  denying  such  lower  rate  to 
other  shippers  of  like  traffic  between  the  same  points  of  origin 
and  destination.  In  such  case  it  may  be  said  that  the  law  pre- 
sumes a  common  injury  to  those  compelled  to  pay  the  higher 
rate  because  of  the  concession  to  the  interest  favored.  If  those 
defendants  obtain  only  reasonable  returns  from  their  entire 
coal  traffic,  it  may  be  well  claimed  that  the  rates  charged  com- 
plainant and  other  IMontpelier  consumers  are  higher  than  they 
would  be  but  for  the  much  lower  rates  allowed  on  coal  for  ' '  rail- 
road supply." 

"jMoreover,  if  this  view  is  correct,  the  absence  of  actual  preju- 
dice to  complainant  would  not  excuse  the  defendants.  The  most 
salutary  law  may  doubtless  be  disregarded  in  some  cases  with- 
out injury  and  inflict  a  degree  of  hardship  in  other  cases  by  its 
enforcement.  Whatever  may  be  said  in  that  regard  in  the  pres- 
ent instance,  we  are  convinced,  upon  the  authority  of  the  de- 
cisions above  cited,  that  the  regulating  statute  does  not  permit 
the  discrimination  shown  in  this  case  and  our  ruling  must  so 
declare." 

§  79.  Undue  preferences  in  favor  of  persons,  localities  or 
traffic. — Section  three  of  the  act  to  regulate  commerce  we  have 
seen  is  substantially  the  same  as  section  two  of  English  Railway 
and  Canal  Traffic  Act  of  1854.  This  section  is  broader  than 
section  two  of  the  act  to  regulate  commerce  and  prohibits  undue 
or  unreasonable  preference.  The  words  "undue"  and  "unrea- 
sonable" in  the  section  shoAv  that  in  the  legislative  mind  there 
could  be  a  preference  that  was  not  unreasonable  and  that  was 
legal.  This  has  been  the  construction  both  of  the  English  and 
the  American  statutes.  The  Supreme  Court  discusses  English 
cases  in  the  Party  Rate  Case,'"  and  also  construes  both  sections 
two  and  three.  The  Supreme  Court  in  the  case  referred  to  re- 
fused to  enforce  an  order  of  the  commission  and  held  that  a 
party  of  ten  or  more  could  be  legally  carried  on  one  ticket  at 

"Int.   Com.   Com.  v.  Baltimore  &      Ohio   E.   Co.,  145  U.   S.   263,   36  L. 
Ed.  699,  705,  706,  12  Sup.  Ct.  844. 


§  79.]  Equality  in  Rates.  153 

a  less  rate  for  each  individual  than  was  charged  for  one  person. 
In  the  course  of  the  opinion  Mr.  Justice  BroA\Ti  said: 

"In  order  to  constitute  an  unjust  discrimination  under  sec- 
tion 2,  the  carrier  must  charge  or  receive  directly  from  one  per- 
son a  greater  or  less  compensation  than  from  another,  or  must 
accomplish  the  same  thing  indirectly  by  means  of  a  special 
rate,  rebate,  or  other  device;  but,  in  either  case,  it  must  be  for 
a  'like  and  contemporaneous  service  in  the  transportation  of  a 
like  kind  of  traffic,  under  substantially  similar  circumstances 
and  conditions.'  To  bring  the  present  case  within  the  words  of 
this  section,  we  must  assume  that  the  transportation  of  ten  per- 
sons on  a  single  ticket  is  substantially  identical  with  the  trans- 
portation of  one,  and,  in  view  of  the  universally  accepted  fact 
that  a  man  may  buy,  contract,  or  manufacture  on  a  large  scale 
cheaper  proportionately  than  upon  a  small  scale,  this  is  impos- 
sible. 

"In  this  connection  we  quote  with  approval  from  the  opinion 
of  Judge  Jackson  in  the  court  below :  '  To  come  within  the  in- 
hibition of  said  sections  ( 2  and  3 ) ,  the  differences  must  be  made 
under  like  conditions;  that  is,  there  must  be  contemporaneous 
service  in  the  transportation  of  like  kinds  of  traffic  under  sub- 
stantially the  same  circumstances  and  conditions.  In  respect 
to  passenger  traffic,  the  positions  of  the  respective  persons,  or 
classes,  between  whom  differences  in  charges  are  made,  must  be 
compared  with  each  other,  and  there  must  be  found  to  exist 
substantial  identity  of  situation  and  of  service,  accompanied 
by  irregularity  and  partially  resulting  in  undue  advantage  to 
one,  or  undue  disadvantage  to  the  other,  in  order  to  constitute 
unjust  discrimination.' 

"The  English  Traffic  Act  of  1854  contains  a  clause  similar  to 
section  3  of  the  Interstate  Commerce  Act,  that  'no  such  com- 
pany shall  make  or  give  any  undue  or  unreasonable  preference 
or  advantage  to  or  in  favor  of  any  particular  person  or  company ; 
or  any  particular  description  of  traffic,  in  any  respect  whatso- 
ever, nor  shall  any  such  company  subject  any  particular  person 
or  company,  or  any  particular  description  of  traffic,  to  any 
undue  or  unreasonable  prejudice,  or  disadvantage  in  any  re- 
spect whatsoever.' 

"In  Hozier  v.  Caledonian  R.  Co.,  17  Sess.  Cas.  302,  1  Nev.  & 
McN.  R.  Cas.  27,  complaint  was  made  by  one  who  had  frequent 
occasion  to  travel,  that  passengers  from  an  intermediate  station 


]5-4  Equality  IN  Rates.  [§79. 

between  Glasgow  and  l^diiibiii'gli  were  charged  much  greater 
rates  to  those  places  than  were  charged  to  other  through  pas- 
sengers between  these  termini;  but  the  Scotch  Court  of  Session 
held  that  the  petitioner  had  not  shown  any  title  or  interest  to 
maintain  the  proceeding;  his  only  complaint  being  that  he  did 
not  choose  that  parties  traveling  from  Edinburgh  to  Glasgow 
should  enjoy  the  benefit  of  a  cheaper  rate  of  travel  than  he  him- 
self could  enjoy.  'It  provides,'  said  the  court,  'for  giving  undue 
preference  to  parties  pari  passu  in  the  matter,  but  you  must 
bring  them  into  competition  in  order  to  give  them  an  interest  to 
complain.' 

"This  is  in  substance  holding  that  the  allowance  of  a  re- 
duced through  rate  worked  no  injustice  to  passengers  living 
on  the  line  of  the  road,  who  were  obliged  to  pay  at  a  greater 
rate.  So,  in  Jones  v.  Eastern  Counties  R.  Co.,  3  C.  B.  N.  S.  718, 
the  court  refused  an  injunction  to  compel  a  railway  company  to 
issue  season  tickets  between  Colchester  and  London  upon  the 
same  terms  as  they  issued  them  between  Harwich  and  London, 
upon  "the  mere  suggestion  that  the  granting  of  the  latter,  the  dis- 
tance being  considerably  greater,  at  a  much  lower  rate  than  the 
former,  was  an  undue  and  unreasonable  preference  of  the  in- 
habitants of  Harwich  over  those  of  Colchester.  Upon  the  other 
hand,  in  Ransome  v.  Eastern  Counties  R.  Co.,  1  C.  B.  N.  S.  437, 
W'here  it  was  manifest  that  a  railway  company  charged  Ipswich 
merchants  who  sent  from  thence  coal  which  had  come  thither 
by  sea,  a  higher  rate  for  the  carriage  of  their  coal  than  they 
charged  Peterboro  merchants,  who  had  made  arrangements  with 
them  to  carry  large  quantities  over  their  lines,  and  thus  the  sums 
charged  the  Peterboro  merchants  were  fixed  so  as  to  enable  them 
to  compete  with  the  Ipswich  merchant,  the  court  granted  an  in- 
junction upon  the  ground  of  an  undue  preference  to  the  Peter- 
boro merchants,  the  object  of  the  discrimination  being  to  benefit 
the  one  dealer  at  the  expense  of  the  other,  by  depriving  the  lat- 
ter of  the  natural  advantages  of  his  position.  In  Oxlade  v. 
Northeastern  R.  Co.,  1  C.  B.  N.  S.  454,  26  L.  J.  C.  P.  129,  1  N. 
&  ;Mac.  72,  a  railway  companj^  was  held  justified  in  carrying 
goods  for  one  person  for  a  less  rate  than  that  at  which  they 
carried  the  same  description  of  goods  for  another,  if  there  be 
circumstances  which  render  the  cost  of  carrying  the  goods  for 
the  former  less  than  the  cost  of  carrying  them  for  the  latter, 
but  that  a  desire  to  introduce  northern  coke  into  a  certain  dis- 


§  79.]  Equality  in  Rates.  155 

trict  was  not  a  legitimate  groimd  for  making  special  agreements 
with  different  mereliants  for  the  carriage  of  coal  and  coke  at  a 
rate  lower  than  the  ordinary  charge,  there  being  nothing  to  show 
that  the  pecuniary  interests  of  the  company  were  affected;  and 
that  this  was  an  undue  preference. 

"In  short,  the  substance  of  all  these  decisions  is  that  railway 
companies  are  only  bound  to  give  the  same  terms  to  all  persons 
alike  imder  the  same  conditions  and  circumstances,  and  that  any 
fact  which  produces  an  inequality  of  condition  and  a  change  of 
circumstances  justifies  an  inequality  of  charge.  These  traffic 
acts  do  not  appear  to  be  as  comprehensive  as  our  own,  and  may 
justify  contracts  which  with  us  would  be  obnoxious  to  the  long 
and  short  haul  clause  of  the  act,  or  would  be  open  to  the  charge 
of  unjust  discrimination.  But  so  far  as  relates  to  the  question 
of  "undue  preference,"  it  must  be  presumed  that  Congress,  in 
adopting  the  language  of  the  English  act,  had  in  mind  the 
construction  given  to  these  words  by  the  English  courts,  and  in- 
tended to  incorporate  them  into  the  statute.  McDonald  v.  Hovey, 
110  U.  S.  619  (28  L.  Ed.  269,  4  Sup.  Ct.  142)." 

In  the  same  case  Circuit  Judge  Jackson,  afterwards  Mr.  Jus- 
tice Jackson,  said:"  "In  passing  upon  the  question  of  undue 
or  unreasonable  preference  or  disadvantage,  it  is  not  only  legiti- 
mate, but  proper,  to  take  into  consideration,  besides  the  mere 
differences  in  charges,  various  elements,  such  as  the  convenience 
of  the  public,  the  fair  interest  of  the  carrier,  the  relative  quan- 
tities or  volume  of  the  traffic  involved,  the  relative  cost  of  the 
services  and  profit  to  the  company  and  the  situation  and  cir- 
cumstances of  the  respective  customers  with  reference  to  each 
other,  as  competitive  or  otherwise." 

In  other  words,  as  said  by  the  Supreme  Court,  in  East  Tenn., 
Va.  &  Ga.  Ry.  Co.  v.  Int.  Com.  Com. :''  "  The  prohibition  of  the 
3d  section,  when  that  section  is  considered  in  its  proper  relation, 
is  directed  against  unjust  discrimination  or  undue  preference 
arising  from  the  voluntary  and  wrongful  act  of  the  carriers  com- 
plained of  as  having  given  undue  preference,  and  does  not  re- 
late to  acts  the  result  of  conditions  wholly  beyond  the  control  of 
such  carriers." 


"Int.   Com.   Com.  v.  Baltimore  &  "181  U.  S.  1,  18,  45  L.  Ed.  719, 

Ohio    R.    Co.,    4.3    Fed.    37,    53,    54,       725,  21  Sup.  Ct.  516. 
3  I.  C.  R.  192. 


156  Eqttamty  in  Rates.  [§  80. 

Length  of  time  that  an  unreasonable  preference  has  existed 
will  not  justify  it.  Judge  Taft.  in  East  Tenn.,  Va.  &  Ga.  Tty.  Co. 
V.  Int.  Com.  Com.,  said  :  " 

"We  are  pressed  with  the  argument  that  to  reduce  the  rates 
to  Chattanooga  will  upset  the  whole  southern  schedule  of  rates, 
and  create  the  greatest  confusion ;  that  for  a  decade  Chattanooga 
has  been  grouped  with  towns  to  the  south  and  west  of  lier,  shown 
in  the  diagram;  and  that  her  rates  have  been  the  key  to  the 
southern  situation.  Tlio  length  of  time  which  an  abuse  has 
continued  does  not  justif}^  it.  It  "was  because  time  had  not  cor- 
rected abuses  of  discrimination  that  the  Interstate  Commerce 
Act  was  passed." 

From  these  authorities  it  is  seen  that  in  determining  whether 
or  not  undue  preference  exists  all  the  surrounding  facts  and  cir- 
cumstances must  be  considered,  including  competition  and  the 
interests  of  the  public  and  the  carriers.  The  commerce  of  this 
vast  country  could  not  be  transacted  unless  carriers  were  allowed 
to  meet  market  and  other  competition  by  taking  all  traffic  that 
increases  receipts  more  than  expenditures.  Nor  is  the  person  or 
locality  that  is  seemingly  discriminated  against  by  this  lower 
competitive  traffic,  really  subjected  to  unjust  or  unreasonable 
discrimination  or  preference.  If  this  cheaper  rate  traffic  pays 
any  profit,  it,  to  that  extent,  increases  the  revenue  of  the  carrier 
and  enables  it  to  better  perform  its  public  duties.  As  said  by  W. 
B.  Dabney  (The  Public  Regulations  of  Railways,  111,  113)  : 
"Discrimination  which  produces  no  injury  can  not  be  considered 
unjust;  i'f  it  can  be  shown  that  discrimination  may  in  certain 
cases  be  actually  beneficial  to  the  community  apparently  discrim- 
inated against,  it  should,  instead  of  being  denounced,  be  encour- 
aged. It  is  not  the  commerce  of  one  nation  or  continent  alone, 
that  determines  the  conditions  of  transportation  within  its 
limits,  but  that  of  the  civilized  world."  Carriers,  however,  can 
not  use  these  arguments  to  do  more  than  meet  the  situations  pre- 
sented by  the  circumstances  and  conditions,  and  any  discrimina- 
tion in  excess  of  that  required  by  the  different  conditions  is  un- 
just and  unreasonable. 

§  80.  Facilities  for  interchange  of  traffic  and  rates  and  charges 
to  connecting  lines  must  be  without  undue  or  unreasonable  pref- 


"99  Fed.  52,  63,  .39  C.  C.  A.  413,       Chicago  v.   Chicago  &  A.   E.   Co.,  4 
425.     See  also  Board  of  Trade  of      I.  C.  C.  R.  158.  3  I.  C.  R.  233. 


§  80.]  Equality  in  Rates.  157 

erence. — The  second  paragraph  of  section  three  of  the  act  to 
regulate  commerce  (see  post  §  510)  requires  common  carriers 
subject  to  the  act  to  afford  reasonable,  proper  and  equal  facil- 
ities for  the  interchange  of  traffic  and  prohibits  discrimination 
in  the  rates  and  charges  of  connecting  lines,  but  does  not  re- 
quire them  to  give  the  use  of  their  tracks  or  terminal  facilities 
to  another  carrier  engaged  in  like  business.  This  provision  of 
the  law  does  not  apply  where  the  circumstances  and  conditions 
are  dissimilar.""  As  to  its  tracks  and  terminal  facilities,  a  com- 
mon carrier  is  left  free  to  allow  their  use  by  one  or  more  con- 
necting lines  to  the  exclusion  of  others."'  Prior  to  the  statute 
a  carrier  was  not  compelled  to  form  a  business  connection  with 
another  carrier  and  was  not  compelled  to  "afford  all  reasonable, 
proper,  and  equal  facilities  for  the  interchange  of  traffic"  with 
connecting  carriers.  In  Atchison,  T.  &  S.  F.  R.  Co.  v.  Denver  & 
N.  0.  R.  Co.,^^  a  bill  was  brought  by  the  Denver  company  to 
compel  the  Atchison  company  to  unite  with  it  in  forming  a 
through  line  of  railroad  transportation  with  all  the  privileges 
as  to  exchange  of  business  that  were  customary  with  connecting 
carriers  and  that  were  then  conceded  to  a  competitive  line  of 
complainant.  It  appears  from  the  evidence  that  it  was  the  cus- 
tom of  connecting  lines  to  make  arrangements  with  reference  to 
the  interchange  of  business  and  the  formation  of  through  lines. 
Of  the  facts,  the  court  said : 

"A  large  amount  of  testimony  is  found  in  the  record,  as  to  the 
custom  of  connecting  roads  in  respect  to  the  interchange  of  busi- 
ness and  the  formation  of  through  lines.  From  this  it  appears 
that,  while  through  business  is  very  generally  done  on  through 
lines  formed  by  an  arrangement  between  connecting  roads,  no 
road  can  make  itself  a  part  of  such  a  line,  so  as  to  participate 
in  its  special  advantages,  without  the  consent  of  the  others.     Of- 

'"  Kentucky    &    I.    Bridge    Co.    v.  Fed.      465.        Affirmed.        61      Fed. 

Louisville  &  N.  E.  Co.,  37  Fed.  567,  158,  9  C.  C.  A.  409;  Atchison,  T.  & 

624,  2  L.  E.  A.  289,  2  I.  C.  E.  351;  S.  F.  Ey.  Co.  v.  Denver  &  N.  O.  E. 

New   York    &   N.    Ey.    Co.    v.    New  Co.,  110  U.  S.  667,  28  L.  Ed.  291, 

York  &  N.  E.  Ey.  Co.,  50  Fed.  867.  4    Sup.    Ct.    185;    Gulf,   C.   &   S.   F. 

=' Little    Eock    &    M.    Ey.    Co.    v.  Ey.  Co.  v.  Miami  S.  S.  Co.,  86  Fed. 

St.   Louis,   I.   M.   &   S.   Ey.    Co.,   59  407,  30  C.  C.  A.  142. 
Fed.   400.     Affirmed.     63   Fed.   775,  '-^^  Atchison,  T.  &  S.  F.  Ey.  Co.  v. 

11     C.    C.    A.    417,    26    L.    E.    A.  DcMiver  &   N.   O.  E.   Co.,   110   U.   S. 

192.  Oregon     S.     L.     &     U.     N.  667,  28  L.  Ed.  291,  4  Sup.  Ct.  185. 

Co.    V.    Northern    Pac.    E.    Co.,    51 


158  Equaijty  IN  Eates.  f§80. 

tentimes  new  roads,  opening  up  new  points,  nre  admitted  at 
once  on  notice,  without  a  special  agreement  to  that  effect  or  in 
reference  to  details;  still,  if  objection  is  made,  the  new  road 
must  be  content  with  the  right  to  do  business  over  the  line  in 
such  a  way  as  the  law  allows  to  others  that  have  no  special  con- 
tract interest  in  the  line  itself.  The  manner  in  Avhich  its  busi- 
ness must  be  done  by  the  line  will  depend,  not  alone  on  the  con- 
nection of  its  track  with  that  of  the  line,  but  upon  the  duty 
which  the  line  as  a  carrier  owes  to  it  as  a  customer.  No  usage 
has  been  established  which  requires  one  of  the  component  com- 
panies of  a  connecting  through  line  to  grant  to  a  competitor  of 
any  of  the  other  companies  the  same  privileges  that  are  accorded 
to  its  associates,  simply  because  the  tracks  of  the  competing 
company  unite  with  its  owti  and  admit  of  a  free  and  convenient 
interchange  of  business.  The  line  is  made  up  by  the  contract- 
ing companies  to  do  business  as  carriers  for  the  public;  and 
companies,  whose  roads  do  not  form  part  of  the  line,  have  no 
other  rights  in  connection  with  it  than  such  as  belong  to  the 
public  at  large,  unless  special  provision  is  made  therefor  by  the 
legislature  or  the  contracting  companies." 

The  decree  entered  by  the  trial  court  fixes  in  detail,  rules  and 
regulations  for  the  working  of  the  Atchison,  Topeka  and  Santa 
Fe,  and  Denver  and  New  Orleans  roads,  in  connection  with  each 
other  as  a  connecting  through  line  and,  in  effect,  requires  the 
Atchison,  Topeka  and  Santa  Fe  Company  to  place  the  Denver 
and  New  Orleans  Company  on  an  equal  footing  as  to  the  inter- 
change of  business  with  the  most  favored  of  the  competitors  of 
that  company,  both  as  to  prices  and  facilities,  except  in  respect 
to  the  issue  of  through  bills  of  lading,  through  checks  for  bag- 
gage, through  tickets  and,  perhaps,  the  compulsory  interchange 
of  cars. 

The  Supreme  Court  goes  somewhat  at  length  into  the  history 
of  state  legislation  with  reference  to  connections  between  car- 
riers and  holds  that  "such  matters  are  and  always  have  been 
proper  subjects  for  legislative  consideration"  and  that  remedies 
for  failure  to  make  connections  or  to  make  connections  without 
discrimination  "can  only  be  obtained  from  the  legislative  branch 
of  the  government."  The  court  then  discussed  the  "undue  pref- 
erence clause"  of  the  English  Railway  and  Canal  Traffic  Act  of 
1854  and  says: 

"Were  there  such  a  statute  in  Colorado,  this  case  would  come 


§  80.]  Equality  in  Rates.  159 

before  us  in  a  different  aspect.  As  it  is,  we  know  of  no  power 
in  the  judiciary  to  do  what  the  Parliament  of  Great  Britain  has 
done  and  what  the  proper  legislative  authority  ought  perhaps 
to  do,  for  the  relief  of  the  parties  to  this  controversy. 

"All  the  American  cases  to  which  our  attention  has  been 
called  by  counsel  relate  either  to  what  amounts  to  undue  dis- 
crimination between  the  customers  of  a  railroad,  or  to  the  power 
of  a  court  of  chancery  to  interfere,  if  there  be  such  a  discrim- 
ination. None  of  them  hold  that,  in  the  absence  of  statutory 
direction  or  a  specific  contract,  a  company  having  the  power  to 
locate  its  own  stopping  places  can  be  required  by  a  court  of 
equity  to  stop  at  another  railroad  junction  and  interchange  busi- 
ness, or  that  it  must  under  all  circumstances  give  one  connecting 
road  the  same  facilities  and  the  same  rates  that  it  does  to  an- 
other'with  which  it  has  entered  into  special  contract  relations 
for  a  continuous  through  line  and  arranged  facilities  accord- 
ingly. These  cases  are  all  illustrative  in  their  analogies,  but 
their  facts  are  different  from  those  we  have  now  to  consider." 

The  decree  of  the  circuit  court  was  reversed,  with  instructions 
to  dismiss  the  bill  without  prejudice.  This  case  was  decided  in 
1883,  and  clearly  points  out  the  evils  sought  to  be  remedied  by 
this  section  of  the  act  to  regulate  commerce.  In  Wisconsin,  i\I. 
&  P.  R.  Co.  V.  Jacobson,"^  the  Supreme  Court  had  before  it  a 
case  from  the  Supreme  Court  of  Minnesota  to  review  the  judg- 
ment of  that  court  affirming  the  judgment  of  the  district  court, 
directing  the  plaintiff  in  error  and  the  Willmar  &  Sioux  Falls 
Railway  Company  to  make  track  connections  with  each  other  at 
Hanley  Falls,  in  the  state  of  IMinnesota,  where  their  respective 
tracts  intersect. 

The  judgment  of  the  district  court  declared  as  follows : 

"That  it  is  the  duty  of  the  defendants,  the  Wisconsin,  Minne- 
sota &  Pacific  Railroad  Company  and  the  Willmar  &  Sioux  Falls 
Railway  Company,  and  they  should  be  and  are  required  to  forth- 
with provide  at  the  place  of  intersection  of  their  said  roads  at 
said  Hanley  Falls,  ample  facilities  by  track  connections  for 
transferring  any  and  all  cars  used  in  the  regular  business  of 
their  respective  lines  of  road  from  the  line  of  tracks  of  one  of 
said  companies  to  those  of  the  other,  and  to  forthwith  provide, 
at  said  place  of  intersection,  equMl  and  reasonable  facilities  for 

«]79   U.   S.   287,  45  L.   Ed.   194,   21  Sup.  Ct.  115. 


160  Equality  IX  Kates.  [§81. 

the  interchange  of  cars  and  traffic  between  their  respective  lines, 
and  for  the  receiving,  forwarding,  and  delivering  property  and 
cars  to  and  from  their  respective  lines." 

The  conrt  discusses  somewhat  at  length  the  legal  principle 
that  railroads  are  public  highways,  upon  which  fact  rests  the 
right  and  duty  of  the  government  to  regulate,  in  a  reasonable 
and  proper  manner,  the  conduct  of  their  business,  and  the  sum 
of  its  opinion  affirming  the  state  court  is  contained  in  two  para- 
graphs of  the  opinion,  as  follows : 

"We  think  this  case  is  a  reasonable  exercise  of  the  power  of 
regulation  in  favor  of  the  interests  and  for  the  accommodation 
of  the  public,  and  that  it  does  not,  regard  being  had  to  the  facts, 
luiduly,  unfairly,  or  improperly  affect  the  pecuniary  rights  or 
interests  of  the  plaintiff  in  error." 

"In  this  case  the  provision  is  a  manifestly  reasonable  one, 
tending  directly  to  the  accommodation  of  the  public,  and  in  a 
manner  not  substantially  or  unreasonably  detrimental  to  the 
ultimate  interests  of  the  corporation  itself." 

This  section  did  not  compel  a  carrier  to  establish  through 
routes  and  joint  rates,  and  any  carrier  could  select  from  two  or 
more  connecting  carriers  those  whom  it  would  employ  as  its 
agents  to  send  freight  beyond  its  o^^^l  line.^  This  power  to  re- 
quire the  establishment  of  through  routes  and  joint  rates  has 
been  given  to  the  commission  by  section  fifteen  of  the  act  as 
amended  by  the  act  of  Jime  29,  1906.  The  ouTier  of  a  private 
wharf,  however,  can  not  be  compelled,  except  by  condemnation 
and  upon  compensation  being  made  for  the  taking  of  the  prop- 
erty, to  allow  its  use  by  others.'"^ 

§  81.  Discrimination  by  charging  more  for  a  shorter  than  a 
longer  haul. — Section  four  of  the  act  to  regulate  commerce  (see 
post  §  511),  kno^Mi  as  the  long  and  short  haul  clause,  prohibits 
carriers  from  charging  or  receiving  a  greater  compensation  from 
transportation  of  passengers  or  "likekind  of  property  under 
substantially  similar  circumstances  and  conditions"  for  a  shorter 
than  for  a  longer  distance  over  the  same  line,  in  the  same  direc- 

^  Kentucky    &    I.    Bridge    Co.    v.  Coast   Naval   Stores   Co.,   198   U.   S. 

Louisville  &  N.  E.  Co.,  37  Fed.  567,  483,   49    L.    Ed.    1135,   25    Sup.    Ct. 

630;    Prescott    &    A.    C.    E.    Co.    v.  745;   Weems  Steamboat  Co.  v.  Peo- 

Atchison,  T.  &  S.  F.  E.  Co.,  73  Fed.  pie's  Co.,  214  U.  S.  34.5,  53  L.  Ed. 
438.  ,         Sup.  Ct. 

=«  Louisville  &  N.  E.  Co.  v.  West 


§  81.]  Equality  in  Rates.  161 

tion,  the  shorter  being  included  in  the  longer.  The  proviso  of 
the  section  authorizes  the  commission,  in  special  cases,  after  in- 
vestigation, to  permit  a  less  charge  for  a  longer  than  a  shorter 
haul.  The  meaning  of  this  proviso  was  first  discussed  by  Judge 
Cooley,  then  chairman  of  the  commission,  In  re  Petition  of 
Louisville  and  Nashville  Railroad  Co.  and  Southern  Ry.  &  S. 
S.  Co.,  1  I.  C.  C.  R.  31,  57,  1  I.  C.  R.  278.  The  carriers,  not 
knowing  just  what  would  be  the  construction  of  the  section, 
thought  it  wise  to  appeal  to  the  discretion  granted  by  the  com- 
mission in  the  proviso.  The  proceedings  before  the  commission 
in  the  case  cited,  supra,  are  given  at  length  in  the  Interstate 
Commerce  Reports,  vol.  I,  beginning  at  page  76.  In  the  peti- 
tion of  the  Southern  Pacific  Co.,  its  president  said: 

"We  construe  the  fourth  section  of  the  Interstate  Commerce 
Act  practically  to  be  in  substance  the  application  to  interstate 
commerce  of  the  common-law  principle  that  the  shipper  avail 
himself  of  competition,  and  that  a  less  rate  may  be  charged  for 
a  longer  than  a  shorter  distance,  providing  more  could  not  be 
obtained.  If  the  right  of  competition  is  recognized  as  between 
the  carrier  and  the  shipper,  our  carrying  business  will  not  be 
interrupted ;  but  otherwise  we  shall  be  imable  to  compete  for  the 
Chinese  and  Japanese  trade  with  the  Suez  Canal,  and  also  unable 
to  compete  with  the  water  routes  by  Panama  and  Cape  Horn 
for  business  originating  in  California." 

In  discussing  the  question  Judge  Cooley  points  out  the  fact 
that  the  proviso  of  the  section  was  devised  by  the  Senate  com- 
mittee, when  the  prohibitive  portion  of  the  section  was  much 
more  stringent  than  what  was  subsequently  passed.  In  con- 
struing the  section  this  great  lawyer  said : 

"That  which  the  act  does  not  declare  unlawful  must  remain 
lawful  if  it  was  so  before ;  and'  that  which  it  fails  to  forbid  the 
carrier  is  left  at  liberty  to  do  without  permission  of  any  one. 
The  charging  or  receiving  the  greater  compensation  for  the 
shorter  than  the  longer  haul  is  seen  to  be  forbidden  only  when 
both  are  under  substantially  similar  circumstances  and  condi- 
tions; and,  therefore,  if  in  any  case  the  carrier,  without  first  ob- 
taining an  order  of  relief,  shall  depart  from  the  general  rule, 
its  doing  so  will  not  alone  convict  it  of  illegality,  since  if  the  cir- 
cumstances and  conditions  of  the  two  hauls  are  dissimilar  the 
statute  is  not  violated. 

"Should  an  interested  party  dispute  that  the  action  of  the 


1()2  Equality  in  Rates.  [§81- 

carrier  was  warranted,  an  issue  would  be  presented  for  adjudi- 
cation, and  the  risks  of  that  adjudication  the  carrier  would  neces- 
sarily assume.  The  later  clause  in  the  same  section,  which  em- 
powers the  commission  to  make  orders  for  relief  in  its  discretion, 
does  not  in  doing  so  restrict  it  to  a  finding  of  circumstances  and 
conditions  strictly  dissimilar,  but  seems  intended  to  give  a  dis- 
cretionary authority  for  cases  that  could  not  well  be  indicated  in 
advance  by  general  designation,  while  the  cases  which  upon  their 
facts  should  be  acted  upon  as  clearly  exceptional  would  be  left 
for  adjudication  when  the  action  of  the  carrier  was  challenged. 
The  statute  becomes  on  this  construction  practical,  and  this  sec- 
tion may  be  enforced  without  serious  embarrassment." 

It  seems  that  thus  early  in  the  history  of  the  commission  it 
was  held  that  where  the  kind  of  property  or  the  circumstances 
and  conditions  were  different,  the  statute  did  not  apply,  and  the 
carrier  was  at  liberty,  without  application  to  the  commission,  to 
meet  competition  by  making  a  less  charge  for  the  longer  haul. 
In  the  opinion  of  the  then  chairman,  the  commission  was,  by  the 
proviso,  given  a  discretion  to  relieve  from  the  act  even  when 
its  provisions  did  apply  to  the  particular  movement.  Unless  this 
construction  of  Judge  Cooley  is  correct,  the  proviso  means  that 
in  all  cases  carriers  must  first  apply  to  the  commission,  or  it  is 
meaningless.  The  opinion  of  Judge  Cooley  was  subsequently 
overruled,  the  commission  saying : '" 

"A  construction  of  the  law  which  allows  a  carrier  to  de- 
termine for  itself  in  every  instance  whether  the  lower  rate  for 
the  longer  distance  is  warranted,  is  liable,  when  such  lower  rate 
is  adopted  by  it,  to  cause  another  carrier  serving  the  same  terri- 
tory to  feel  justified  in  establishing  a  lower  rate  for  the  longer 
distance  on  its  line  to  the  same  point  or  to  a  different  point 
appearing  to  require  relatively  favorable  rates;  and  is  also  lia- 
ble to  cause  other  carriers  in  the  same  section  to  take  similar 
action,  thus  creating  an  artificial  or  abnormal  situation  which 
constantly  provokes  belief  and  claim  of  icujast  discrimination 
and  endless  controversies  between  shippers  and  carriers.  Such 
a  situation,  left  unchanged,  presents  a  railroad  problem  most 
difficult  of  solution.  But  a  construction  of  the  law^  which  will 
compel  a  carrier,  before  putting  in  a  lower  rate  for  the  longer 

=»Eailroad  Commission  of  Geor-  Co.,  5  I.  C.  C.  R.  324,  4  I,  C.  E. 
gia,  Traniffiell  et  al.  v,  Cl7de  S.  S.     120,  150. 


§  81,]  Equ.vlity  in  Rates.  163 

distance,  to  seek  relief  by  a  method  which  will  involve  a  careful 
examination  of  the  traffic  conditions  as  to  all  lines  competing 
for  carriage  in  the  same  territory,  would  tend  to  promote  a  solu- 
tion more  beneficial  for  all  parties. 

"A  concise  statement  of  this  construction  of  the  fourth  sec- 
tion on  the  point  above  discussed  is :  The  carrier  has  a  right 
to  judge  in  the  first  instance  whether  it  is  justified  in  making 
the  greater  charge  for  the  shorter  distance  under  the  fourth  sec- 
tion in  all  cases  where  the  circumstances  and  conditions  arise 
wholly  upon  its  own  line  or  through  competition  for  the  same 
traffic  with  carriers  not  subject  to  regulation  under  the  act  to 
regulate  commerce.  In  other  cases  under  the  fourth  section  the 
circumstances  and  conditions  are  not  presumptively  dissimilar, 
and  carriers  must  not  charge  less  for  the  longer  distance  except 
upon  the  order  of  this  commission. 

"Aside  from  overuling  the  "rare  and  peculiar  cases"  excep- 
tion, this  construction  is  no  departure  from  previous  rulings  and 
is  not  new." 

The  Supreme  Court  subsequently  adopted  the  rule  announced 
by  Judge  Cooley." 

The  first  case  under  this  section  to  reach  the  Supreme  Court 
is  what  is  known  as  the  Social  Circle  Case.^^  In  that  case  the 
first  contention  w^as  that  as  the  charge  to  Social  Circle  was  made 
up,  of  the  joint  rate  to  Atlanta,  the  long  haul,  plus  the  local  rate 
over  an  intrastate  road  from  Atlanta  to  Social  Circle,  the  whole 
of  the  local  rate  going  to  the  state  road,  the  shipment  was  not 
within  the  provisions  of  the  act  to  regulate  commerce.  This  con- 
tention the  Supreme  Court  held  unsoimd,  saying:  "that  when 
goods  are  shipped  under  a  through  bill  of  lading,  from  a  point 
in  one  state  to  a  point  in  another,  and  w^hen  such  goods  are 
received  in  transit  by  a  state  common  carrier,  under  a  conven- 
tional division  of  the  charges,  such  carrier  must  be  deemed  to 
have  subjected  its  road  to  an  arrangement  for  a  continuous  car- 
riage or  shipment  within  the  meaning  of  the  act  to  regulate  com- 
merce."  Having  held  that  the  Georgia  Road  was  subject  to  the 
provision  of  the  section,  the  court  proceeded  to  define  the  power 

"  Int.   Com.   Com.  v.  Alabama  M.  ^^  Int.    Com.    Com.    v.    Cincinnati, 

E.  Co.,  168  U.  S.  144,  42  L.  Ed.  414,  N.  O.  &  T.  P.  Ey.  Co.,  162  U.  S. 
18  Sup.  Ct.  45.  ]84,  40  L.  Ed.  935,  16  Sup.  Ct.  700. 


164  Equality  ix  Rates.  [§81. 

of  the  commission,  and  to  state  the  effect  of  its  decision  that  the 
section  had  been  violated.    The  court  said : 

"Subject,  then,  as  we  hold  the  Georgia  Railroad  Company  is, 
under  the  facts  found,  to  the  provisions  of  the  act  to  regulate 
commerce,  in  respect  to  its  interstate  freight,  it  follows,  as  we 
think,  that  it  was  within  the  jurisdiction  of  the  commission  to 
consider  whether  the  said  company,  in  charging  a  higher  rate 
for  a  shorter  than  for  a  longer  distance  over  the  same  line,  in 
the  same  direction,  the  shorter  being  included  within  the  longer 
distance,  was  or  was  not  transporting  property  in  transit  be- 
tween states,  under  'substantially  similar  circumstances  and 
conditions. ' 

''We  do  not  say  that,  under  no  circumstances  and  conditions, 
would  it  be  lawful,  when  engaged  in  the  transportation  of  for- 
eign freight,  for  a  carrier  to  charge  more  for  a  shorter  than  a 
longer  distance  on  its  own  line ;  but  it  is  for  the  tribunal  ap- 
pointed to  enforce  the  provisions  of  the  statute,  whether  the 
commission  or  the  court,  to  consider  whether  the  existing  cir- 
cumstances and  conditions  were  or  were  not  substantially  sim- 
ilar. 

"It  has  been  forcibly  argued  that,  in  the  present  case,  the 
commission  did  not  give  due  weight  to  the  facts  that  tended 
to  show  that  the  circumstances  and  conditions  were  so  dissimilar 
as  to  justify  the  rates  charged.  But  the  question  was  one  of 
fact,  peculiarly  within  the  province  of  the  commission,  whose 
conclusions  have  been  accepted  and  approved  by  the  circuit  court 
of  appeals,  and  w^e  find  nothing  in  the  record  to  make  it  our 
duty  to  draw  a  different  conclusion." 

In  the  Import  Rate  Case,""  the  Supreme  Court  discussed  sec- 
tion four  as  follows : 

"The  4th  section  makes  it  unlawful  for  any  such  common 
carrier  to  "charge  or  receive  any  greater  compensation  in  the 
aggregate  for  the  transportation  of  passengers  or  of  like  kind  of 
property,  under  substantially  similar  circumstances  and  condi- 
tions, for  a  shorter  than  for  a  longer  distance  over  the  same 
line,  in  the  same  direction,  the  shorter  being  within  the  longer 
distance,  but  this  shall  not  be  construed  as  authorizing  any  such 
common  carrier  to  charge  and  receive  as  great  compensation  for 


^  Int.  Com.  Com.  v.  Tex.  &  P.  Ry.      16  Sup.  Ct.  700. 
Co.,  162  U.  S.  197,  42  L.  Ed.  940, 


§  81.]  Equality  in  Rates.  165 

a  shorter  as  for  a  longer  distance,"  and  provision  is  likewise 
made  that,  'upon  application  to  the  commission  appointed  under 
the  provisions  of  the  act,  such  common  carrier  may,  in  special 
cases,  after  investigation  by  the  commission,  be  authorized  to 
charge  less  for  longer  than  shorter  distances  for  the  transpor- 
tation of  passengers  or  property;'  and  that  'the  commission  may 
from  time  to  time  prescribe  the  extent  to  which  such  designated 
common  carrier  may  be  relieved  from  the  operation  of  this  sec- 
tion of  the  act.'  *  *  *  *  *  *  ***** 

"The  principal  purpose  of  the  2d  section  is  to  prevent  un- 
just discrimination  between  shippers.  It  implies  that,  in  decid- 
ing whether  differences  in  charges,  in  given  cases,  were  or  were 
not  unjust,  there  must  be  a  consideration  of  the  several  ques- 
tions whether  the  services  rendered  were  'like  and  contem- 
poraneous,' whether  the  kinds  of  traffic  were  'like,'  whether  the 
transportation  was  affected  imder  'substantially  similar  circum- 
stances and  conditions.'  To  answer  such  questions,  in  any  ease 
coming  before  the  commission,  requires  an  investigation  into  the 
facts ;  and  we  think  that  Congress  must  have  intended  that  what- 
ever would  be  regarded  by  common  carriers,  apart  from  the 
operation  of  the  statute,  as  matters  which  warranted  differ- 
ences in  charges,  ought  to  be  considered  in  forming  a  judgment 
whether  such  differences  were  or  were  not  'imjust. '  Some 
charges  might  be  unjust  to  shippers — others  might  be  unjust  to 
the  carriers.  The  rights  and  interests  of  both  must,  under  the 
terms  of  the  act,  be  regarded  by  the  commission. 

"The  third  section  forbids  any  undue  or  unreasonable  pref- 
erence or  advantage  in  favor  of  any  person,  company,  firm, 
corporation,  or  locality ;  and  as  there  is  nothing  in  the  act  which 
defines  what  shall  be  held  to  be  due  or  imdue,  reasonable  or  un- 
reasonable, such  questions  are  questions,  not  of  law,  but  of  fact. 
The  mere  circumstance  that  there  is,  in  a  given  case,  a  prefer- 
ence or  an  advantage  does  not  of  itself  show  that  such  prefer- 
ence or  advantage  is  undue  or  unreasonable  within  the  meaning 
of  the  act.  Hence  it  follows  that  before  the  commission  can  ad- 
judge a  common  carrier  to  have  acted  unlawfully,  it  must  ascer- 
tain the  facts ;  and  here  again  we  think  it  evident  that  those  facts 
and  matters  which  carriers,  apart  from  any  question  arising 
under  the  statute,  would  treat  as  calling,  in  given  cases,  for  a 
preference  or  advantage,  are  the  facts  and  matters  which  must 
be  considered  by  the  commission  in  forming  its  judgment  whether 


166  Equality  IN  Rates.  [§81. 

such  preference  or  advantage  is  undue  or  unreasonable.  AVlien 
the  section  says  that  no  locality  shall  be  subjected  to  any  undue 
or  unreasonable  prejudice  or  disadvantage  in  any  respect  what- 
soever, it  does  not  mean  that  the  commission  is  to  regard  only 
the  welfare  of  the  locality  or  community  where  the  traffic  orig- 
inates, or  where  the  goods  are  shipped  on  the  cars.  The  welfare 
of  the  locality  to  which  the  goods  are  sent  is  also,  under  the 
terms  and  spirit  of  the  act,  to  enter  into  the  question. 

"The  same  observations  are  applicable  to  the  4th  section,  or 
the  so-called  long  and  short  haul  provision,  and  it  is  unneces- 
sary to  repeat  them." 

The  Supreme  Court  mentioned  the  long  and  short  haul  clause 
in  the  case  of  Parsons  v.  Chicago  &  N.  W.  Ry.  Co.,"*"  merely  to 
show  that  it  was  not  violated.  It  was  again  before  the  court 
in  Int.  Com.  Com.  v.  Detroit,  G.  H.  &  M.  Ry.  Co.,''  where  it 
was  held  that  the  section  relates  only  to  transportation  by  rail 
and  charges  therefor,  and  that  it  was  not  violated  by  granting 
free  cartage  on  delivery  of  goods  at  the  end  of  the  longer  haul 
and  refusing  the  same  privilege  to  the  shorter  haul. 

In  the  Troy  Alabama  Case,'''  the  Supreme  Court  held  that 
competition  between  rival  routes  which  affects  rates  must  be 
considered  in  determining  whether  or  not  the  circumstances  and 
conditions  w-ere  substantially  similar  under  section  four  of  the 
act,  though  such  competition  was  not  a  pertinent  fact  in  consid- 
ering discrimination  under  section  two.  It  was  there  said  by 
Mr.  Justice  Shiras : 

"We  are  unable  to  suppose  that  Congress  intended,  by  the 
4th  section  and  the  proviso  thereto,  to  forbid  the  common  car- 
riers, in  cases  where  circumstances  and  conditions  are  substan- 
tially dissimilar,  from  making  different  rates  until  and  unless 
the  commission  shall  authorize  them  so  to  do,  much  less  do  we 
think  that  it  was  the  intention  of  congress  that  the  decision  of 
the  commission,  if  applied  to,  could  not  be  reviewed  by  the 
courts.  The  provisions  of  section  16  of  the  act,  which  author- 
izes the  court  to  'proceed  to  hear  and  determine  the  matter  speed- 

»"  Parsons  v.  Chicago  &  N.  W.  Ey.  ^  Int.   Com.   Com.  v.  Alabama  M. 

Co.,  167  U.  S.  447,  42  L.  Ed.  231,  E.  Co.,  168  U.  S.  144,  42  L.  Ed.  414, 
17  Sup.  Ct.  887.  18  Sup.  Ct.  45. 

'^  Int.  Com.  Com.  v.  Detroit,  Gr, 
H.  &  M.  Ey.  Co.,  167  U.  S.  633, 
42  L.  Ed.  306,  17  Sup.  Ct.  986. 


§  81.]  Equality  in  Kvtes.  167 

ily  as  a  court  of  equity,  and  without  the  formal  pleadings  and 
proceedings  applicable  to  ordinary  suits  in  equity,  but  in  such 
manner  as  to  do  justice  in  the  premises,  and  to  this  end,  such 
court  shall  have  power,  if  it  think  fit,  to  direct  and  prosecute 
in  such  mode  and  by  such  persons  as  it  may  appoint,  all  such 
inquiries  as  the  court  may  think  needful  to  enable  it  to  form  a 
just  judgment  in  the  matter  of  such  petition,'  extend  as  well 
to  an  inquiry  or  proceeding  under  the  4th  section  as  to  those 
arising  under  the  other  sections  of  the  act. ' ' 

After  reviewing  the  evidence,  the  order  of  the  commission  was 
set  aside.  Tliis  decision  puts  it  in  the  power  of  rail  carriers  to 
practically  destroy  the  force  of  section  four.  If  competition  of 
rival  lines  will  relieve  from  the  section,  it  is  always  possible  for 
the  line  that  reaches  the  longer  distance  point,  and  not  the 
shorter,  to  make  such  competition  as  will  release  from  the  obliga- 
tion of  the  statute  the  carrier  that  serves  both  points.  This  re- 
sult is  clearly  pointed  out  by  Mr.  Justice  Harlan  in  his  dissent- 
ing opinion,  as  follows: 

''I  dissent  from  the  opinion  and  judgment  in  this  case.  Taken 
in  connection  with  other  decisions  defining  the  powers  of  the 
Interstate  Commerce  Commission,  the  present  decision,  it  seems 
to  me,  goes  far  to  make  that  commission  a  useless  body  for  all 
practical  purposes,  and  to  defeat  many  of  the  important  objects 
designed  to  be  accomplished  by  the  various  enactments  of  Con- 
gress relating  to  interstate  commerce.  The  commission  was  es- 
tablished to  protect  the  public  against  the  improper  practices  of 
transportation  comj^anics  engaged  in  commerce  among  the  sev- 
eral states.  It  has  been  left,  it  is  true,  with  power  to  make  re- 
ports, and  to  issue  protests.  But  it  has  been  shorn,  by  judicial 
interpretation,  of  authority  to  do  anything  of  an  effective  char- 
acter. It  is  denied  many  of  the  powers  which,  in  my  judgment, 
were  intended  to  be  conferred  upon  it.  Besides,  the  acts  of 
Congress  are  now  so  construed  as  to  place  communities  on  the 
lines  of  interstate  commerce  at  the  mercy  of  competing  railroad 
companies  engaged  in  such  commerce.  The  judgment  in  this 
case,  if  I  do  not  misapprehend  its  scope  and  effect,  proceeds  upon 
the  ground  that  railroad  companies,  when  competitors  for  inter- 
state business  at  certain  points,  may,  in  order  to  secure  traffic 
for  and  at  those  points,  establish  rates  that  will  enable  them  to 
accomplish  that  result,  although  such  rates  may  discriminate 
against  intermediate  points.     Under  such  an  interpretation  of 


168  Equality  in  Rates.  [§  81. 

the  statutes  in  question,  they  may  well  be  regarded  as  recogniz- 
ing the  authority  of  competing  railroad  companies  engaged  in 
interstate  commerce — when  their  interests  will  be  subserved 
thereby — to  build  up  favored  centers  of  population  at  the  ex- 
pense of  the  business  of  the  country  at  large.  I  cannot  believe 
that  Congress  intended  any  such  result,  nor  do  I  think  that  its 
enactments,  properly  interpreted,  would  lead  to  such  a  result." 

In  the  Behlmer  Case,'^'  the  commission  having  erred  in  refus- 
ing to  consider  any  competition  other  than  that  originating  at 
the  point  of  shipment,  the  order  of  the  commission  was  set  aside, 
and  as  the  petition  was  by  a  private  individual,  in  behalf  of  him- 
self and  others  similarly  situated,  the  order  was  without  preju- 
dice to  further  proceedings  before  the  commission.  Similarly,  in 
East  Tenn.,  Va.  &  6a.  Ry.  Co.  v.  Int.  Com.  Com.  and  Clyde  S. 
S.  Case,**  a  material  fact  not  having  been  considered  by  the 
conmiission,  its  order  was  not  enforced,  but  the  commission  was 
left  free  to  make  further  investigation  of  the  facts  in  accordance 
with  the  law  announced  by  the  court.  In  this  case  the  Supreme 
Court  had  under  consideration  as  a  circumstance  establishing  a 
difference  in  conditions,  the  fact  that  one  railroad  by  making 
low  rates  to  Nashville  had  forced  the  carriers  reaching  Nashville 
through  Chattanooga  to  make  a  rate  to  Nashville  less  than  the 
rate  to  Chattanooga,  a  shorter  haul.  The  facts  upon  which  the 
Supreme  Court  based  its  conclusion  are  stated  as  follows : 

"The  lower  rates  accepted  by  the  carriers  engaged  in  the 
transportation  of  eastern  merchandise  to  Nashville  via  Chatta- 
nooga are  not  forced  upon  them  by  any  water  competition  at  the 
former  place.  In  performing  this  service  for  the  compensation 
fixed  by  the  present  tariffs,  these  carriers  are  not  affected  by  the 
circumstance  that  water  communication  exists  between  Cin- 
cinnati and  Nashville.  The  Nashville  rate  is  independent  of  the 
lines  operating  through  Chattanooga,  and  those  lines  have  no 
voice  in  determining  its  amount.  The  rate  is  made  by  the  all- 
rail  carriers  via  Cincinnati,  and  their  action  is  controlled  by  the 
defendant  lines.  The  competition  which  the  latter  meet  at 
Nashville  is  distinctly  the  competition  of  the  trunk  lines  and  the 

^Louisville  &  N.  E.   Co.  v.  Behl-  L.   Ed.   719,   21   Sup.   Ct.   516.      See 

mer,  17-5  U.  S.  648,  44  L.  Ed.  309,  also  Int.  Com.   Com.  v.  Clyde  S.  S. 

20  Sup.  Ct.  209.  Co.,  181  V.  S.  29,  45  L.  Ed.  729,  21 

^East  Tenn.,  Va.  &  Ga.  Ey.  Co.  Sup.  Ct.  512. 
V.  Int.  Com.  Com.,  181  U.  S.  1,  45 


§  81.]  Equality  in  Rates.  169 

Louisville  &  Nashville  sytem,  whose  northern  termini  are  at 
points  on  the  Ohio  River  which  receive  trunk  line  rates  on  east- 
ern shipments.  The  competitors  of  the  defendants  for  this  Nash- 
ville traffic,  therefore,  are  the  railroads  from  the  Atlantic  sea- 
board reaching  Nashville  by  way  of  Cincinnati,  etc.,  all  of 
which  are  interstate  carriers  subject  to  the  act  to  regulate  com- 
merce. These  carriers  established  rates  and  united  in  joint  tariffs 
from  eastern  points  to  Nashville  long  before  the  lines  through 
Chattanooga  engaged  in  the  Nashville  business.  The  acceptance 
of  the  rates  so  fixed  by  the  rail  lines  via  Cincinnati  was  the 
necessary  condition  upon  which  the  lines  via  Chattanooga  could 
compete  for  Nashville  traffic." 

The  only  limitation  placed  upon  the  carriers'  right  to  make, 
by  an  unusual  rate,  competitive  conditions  justifying  the  disre- 
gard of  the  long  and  short  haul  clause  is  stated  in  the  course 
of  the  opinion,  as  follows: 

"That,  as  indicated  by  the  previous  opinions  of  this  court, 
there  may  be  cases  where  the  carrier  cannot  be  allowed  to  avail 
of  the  competitive  condition  because  of  the  public  interests  and 
the  other  provisions  of  the  statute,  is  of  course  clear.  What  par- 
ticular environment  may  in  every  case  produce  this  result  can- 
not be  in  advance  indicated.  But  the  suggestion  of  an  obvious 
ease  is  not  inappropriate.  Take  a  case  where  the  carrier  cannot 
meet  the  competitive  rate  to  a  given  point  without  transporting 
the  merchandise  at  less  than  the  cost  of  transportation,  and 
therefore  without  bringing  about  a  deficiency,  which  would  have 
to  be  met  by  increased  charges  upon  other  business.  Clearly,  in 
such  a  case,  the  engaging  in  such  competitive  traffic  would  both 
bring  about  an  unjust  discrimination  and  a  disregard  of 
the  public  interest,  since  a  tendency  towards  unreasonable  rates 
on.  other  business  would  arise  from  the  carriage  of  traffic  at  less 
than  the  cost  of  transportation  to  particular  places.  But  no  con- 
dition of  this  character  is  here  in  question." 

In  the  LaGrange  Case,''^  in  which  J\Ir.  Justice  Harlan  again 
dissents,  the  actual  geographical  facts  would  appear  to  raise 
the  same  rate  situation  as  that  existing  in  the  Social  Circle  Case, 
supra.     In  the  LaGrange  Case,  however,  the  order  of  the  com- 


"  Int.   Com.   Com.  v.  Louisville  &       1047,  23  Sup.  Ct.  687. 
N.  R.  Co.,  ]90  U.  S.  273,  47  L.  Ed. 


1(0  Equality  IN  Rates.  [§  81. 

mission  was  not  enforced,  the  court,  through  ]Mr.  Justice  White, 
saying : 

"Clearly,  if,  disregarding  the  competition  at  Atlanta,  the 
higher  rate  had  been  established  from  New  Orleans  to  the  con- 
competitive  points  within  the  designated  radius  from  Atlanta, 
the  inevitable  result  would  have  been  to  cause  the  traffic  to  move 
from  New  Orleans  to  the  competitive  point  (Atlanta),  and 
thence  to  the  places  in  question,  thus  bringing  about  the  same 
rates  now  complained  of.  It  having  been  established  that  com- 
petition affecting  rates  existing  at  a  particular  point  (Atlanta) 
produced  the  dissimilarity  of  circumstances  and  conditions  con- 
templated by  the  -Ith  section  of  the  act,  we  think  that  it  inev- 
itably followed  that  the  railway  companies  had  a  right  to  take 
the  lower  rate  prevailing  at  Atlanta  as  a  basis  for  the  charge 
made  to  places  in  territory  contiguous  to  Atlanta,  and  to  ask, 
in  addition  to  the  low  competitive  rate,  the  local  rate  from  At- 
lanta to  such  places,  provided  thereby  no  increased  charges  re- 
sulted over  those  which  would  have  been  occasioned  if  the  low 
rate  to  Atlanta  had  been  left  out  of  view.  That  is  to  say,  it 
seems  incontrovertible  that  in  making  the  rate,  as  the  railroads 
had  a  right  to  meet  the  competition,  they  were  authorized  to  give 
the  shippers  the  benefit  of  it  by  according  to  them  a  lower  rate 
than  would  otherwise  have  been  afforded.  True  it  is,  that  by  this 
method  a  lower  rate  from  New  Orleans  than  was  exacted  at  La 
Grange  obtained  at  the  longer  distance  places  lying  between  La 
Grange  and  Atlanta,  but  this  was  only  the  result  of  their  prox- 
imity to  the  competitive  point,  and  they  hence  obtained  only  the 
advantage  resulting  from  their  situation.  It  could  be  no  legal 
disadvantage  to  LaGrange,  since,  if  the  low  competitive  rate 
prevailing  at  Atlanta  had  been  disregarded,  and  the  rate  had 
been  fixed  with  reference  to  IMontgomerj^,  and  then  the  local  rate 
from  thence  on,  the  sole  result  would  have  been,  as  we  have  pre- 
viously said,  to  cause  the  traffic  to  move  along  the  line  of  least 
resistance  to  Atlanta,  and  thence  to  the  places  named,  leaving 
LaGrange  in  the  exact  position  in  which  it  was  placed  by  the 
rates  now  complained  of." 

In  the  Griffin  Case,^°  Judge  Speer  discusses  the  authorities  at 
length,  and  concludes  with  the  following  observations : 

"Shall  the  millions  they  have  invested  in  railroads  from  their 

3"  Brewer  v.  Central  of  Ga.  E.  Co.,    84  Fed.  258. 


§  81.]  Equality  in  Rates.  171 

own  means,  to  afford  to  the  state  great  systems  of  transportation, 
result  in  their  ruin?  Shall  government  undertake  the  impos- 
sible, but  injurious,  task  of  making  the  connnercial  advantages 
of  one  place  equal  to  those  of  another  ?  It  might  as  well  attempt 
to  equalize  the  intellectual  powers  of  its  people.  There  should 
be  no  attempt  to  deprive  a  commmiity  of  its  natural  advantages, 
or  those  legitimate  rewards  which  flow  from  large  investments, 
business  industries  and  competing  systems  of  transportation  to 
facilitate  and  increase  commerce.  The  act  to  regulate  commerce 
has  no  such  purpose. ' ' 

In  Interstate  Commerce  Commission  v.  "Western  &  A.  R.  Co.,^^ 
Judge  Ne^^^nan,  having  under  consideration  a  case  complaining 
of  rates  to  certain  local  points  in  Georgia  as  compared  with  a 
less  rate  to  Atlanta,  the  longer  distance  point,  discusses  the  de- 
cisions of  the  Supreme  Court,  with  the  exception  of  the  Social 
Circle  Case,  which  he  probably  regarded  as  having  been  in  ef- 
fect overruled,  and  cites  the  reports  of  the  commission,  together 
with  circuit  and  circuit  courts  of  appeals  decisions,  from  all  of 
which  he  arrives  at  a  conclusion  which  seems  to  be  an  accurate 
statement  of  the  law.    His  conclusions  are  thus  stated: 

''It  is  sho^^^l  hy  the  evidence  and  by  the  record  that  competi- 
tion at  Atlanta  is  active  and  effective,  and  controls  in  the  making 
of  the  rates  in  controversy  to  Atlanta,  and  that  there  is  little  or 
no  competition  at  any  of  the  local  points  as  to  which  complaint 
is  made  by  the  Georgia  commission.  Consequently,  the  haul  to 
Atlanta  is  not  under  circumstances  and  conditions  substantially 
similar  to  those  at  the  other  localities,  and  therefore  the  fourth 
section  of  the  act  is  not  violated. 

''There  is  nothing  whatever  in  the  evidence  or  in  the  record 
from  which  it  can  be  justly  concluded  that  the  rates  to  any  of 
the  local  points  named  are,  in  and  of  themselves,  unjust  and  un- 
reasonable, in  violation  of  the  first  section  of  the  act. 

"The  evidence  fails  to  show  that  the  rates  complained  of  vio- 
late the  third  section  of  the  act.  The  only  complaint  made,  and 
all  that  the  evidence  shows,  is  that  the  rate  to  Atlanta,  the 
longer  distance  point,  is  less  than  the  rate  to  these  shorter  dis- 
tance points;  and  as  the  rate  to  Atlanta  is  shown  to  have  been 
brought  a]}out  by,  and  to  be  the  result  of,  active  competition  at 
that  point,  it  cannot  be  held  to  be  a  preference  which  is  undue 

'''  Int.  Com.  Com.  v.  Western  &  A.    R.  Co.,  88  Fed,  186. 


172  Equality  IX  Rates.  [§81. 

or  unreasonable  in  favor  of  Atlanta,  or  to  subject  the  local 
points  named  to  any  undue  or  unreasonable  prejudice  or  dis- 
advantage." 

It  would  seem  that  the  dissenting  opinion  of  ^Mr.  Justice  Har- 
lan, supra,  more  nearly  applies  the  legislative  intent  than  that 
arrived  at  by  the  majority  of  the  court.  Bvit  it  should  be  re- 
membered that,  as  has  been  said  by  the  Supreme  Court,*  the  act 
to  regulate  commerce  was  experimental,  and  its  purpose  was  not 
to  prevent,  but  promote,  competition.  Competition  of  markets 
is  a  force  that  carriers  can  not  disregard,  it  affects  all  transporta- 
tion to  a  greater  or  less  extent.  As  said  by  Arthur  T.  Hadley, 
Railroad  Transportation,  p.  65:  ''The  wheat  of  Dakota,  the 
wheat  of  Russia,  and  the  wheat  of  India  come  into  direct  com- 
petition. The  supply  at  Odessa  is  an  element  in  determining  the 
price  at  Chicago.  .  . .  Cabbages  from  Germany  contend  with 
cabbages  from  IMissouri  in  the  markets  of  New  York."  Xor  does 
this  lower  rate  to  the  competitive  point  injure  the  non-competi- 
tive point,  so  long  as  there  is  any  profit  in  the  competitive  rate. 
This  point  is  clearly  pointed  out  in  the  La  Grange  Case,  supra, 
The  higher  rate  for  the  local  haul  is  sometimes  necessarj^  in 
order  that  a  community  may  have  railroad  transportation.  To 
quote  again  from  Hadley 's  Railroad  Transportation,  at  p.  115: 

"Suppose  it  is  a  question  whether  a  road  can  be  built  through 
a  country  district,  lying  between  two  large  cities,  which  have  the 
benefit  of  water  communication,  while  the  intervening  district 
has  not.  The  rate  between  these  points  must  be  made  low  to 
meet  water  competition ;  so  low  that  if  it  were  applied  to  the 
whole  business  of  the  road  it  would  make  it  quite  unprofitable. 
On  the  other  hand,  the  local  business  at  intermediate  points  is 
so  small  that  this  alone  can  not  support  the  road,  no  matter  how 
low  or  how  high  the  rates  are  made.  So  that,  in  order  to  live 
at  all,  the  road  must  secure  two  different  things — the  high  rates 
for  its  local  traffic,  and  the  large  traffic  of  the  through  points 
which  can  only  be  attracted  by  low  rates.  If  the  commimity  is 
to  have  the  road,  it  must  permit  the  discrimination." 

The  burden  of  proof  to  show  dissimilarity  in  circumstances  is 
on  the  carrier.*'    "Line"  used  in  the  statute  means  a  physical 

^  Spartanburg  Board  of  Trade  v.       304,  2  I.  C.  K.  193. 
Eichmond  &  D.  K.  Co.,  2  I.  C.  C.  K. 


§  82.]  Equality  in  Rates.  173 

line,  not  a  mere  business  arrangement.""  The  State  of  Kentucky 
provided  a  long  and  short  haul  clause  in  its  constitution,  by 
which  in  no  case,  without  the  permission  of  its  railroad  commis- 
sion, granted  after  special  investigation,  could  a  carrier  make  a 
greater  charge  for  a  shorter  than  a  longer  haul.  This  law  the 
Supreme  Court  held  valid  when  both  the  long  and  short  haul 
were  within  the  state,'"  but  invalid  M'hen  the  longer  was  an  in- 
terstate haul." 

§  82.  Discrimination  between  car  loads  and  less  than  car  loads. 
— A  differential  between  car  load  and  less  than  car  load  ship- 
ments is  not  prohibited  by  the  act  to  regulate  commerce,  and 
the  commission  has  said  :*'  "  It  is  a  sound  rule  for  carriers  to 
adapt  their  classifications  to  the  laws  of  trade.  If  an  article 
moves  in  sufficient  volume,  and  the  demands  of  commerce  will 
be  better  served,  it  is  reasonable  to  give  it  a  car  load  classifica- 
tion and  rate.  The  care  load  is  probably  the  only  practicable 
unit  of  quantity."  Whether  or  not  there  should  be  a  differ- 
ential and,  if  any,  what,  between  car  loads  and  less  than  car 
loads  depends  upon  the  facts  and  circumstances  in  each  particu- 
lar case.  One  of  the  most  important  facts  to  be  considered  is 
the  difference,  if  any,  in  the  cost  of  service. 

Noyes,  in  his  excellent  work  on  American  Railroad  Rates " 
says:  "Shipments  in  car  load  lots  furnish  a  large  paying 
freight  relative  to  dead  weight,  and  smaller  proportionate  ex- 
pense for  loading  and  unloading,  billing  and  collecting,  than 
small  shipments."  The  differential,  like  a  rate,  should  be  rea- 
sonable and  should  be  fixed  with  a  view  to  the  just  interests  of 
all  concerned  and  the  adjustment  of  this  difference  rests  primar- 
ily with  the  carriers."  This  principle  has  been  very  generally 
recognized  by  carriers.  As  shown  by  Prof.  Adams,  in  Railways 
in  the  United  States  in  1902,  part  2,  pp.  32,  33,  39,  in  official 

^^  Boston  &  A.  E.  Co.  v.  Boston  &  R.  E.  Co.,  3  I.  C.  C.  E.  473,  2  I.  C. 

L.  E.  Co.,  1  I.  C.  C.  E.  158,  1  I.  C.  E.  752. 

E.  500,  571;  Daniels  v.  Chicago,  E.  "Noyes,        American         Eailroad 

I.  &  P.  E.  Co.,  6  I.  C.  C.  E.  458,  476.  Eates,  73. 

*"  Louisville  &  N.  E.   Co.  v.  Ken-  "  Business   Men 's    League    of    St. 

tucky,  183  U.  S.  503,  46  L.  Ed.  298,  Louis  v.   Atchison,   T.   &   S.   F.  Ey. 

22  Sup.  Ct.  95.  Co.,  9  L  C.  C.  E.  319,  358,  359,  368; 

"Louisville   &  N.   E.    Co.   v.   Eu-  California     Com.     Asso.     v.     Wells 

hank,  184  U.  S.  27,  46  L.  Ed.  416,  Fargo  Ex.  Co.,  14  L  C.  C.  E.  422; 

22  Sup.  Ct.  277.  Scofield  v.  Lake  S.  &  M.  S.  E.  Co., 

♦'  Thurber  v.  New  York  C.  &  H,  2  I.  C  C.  E.  90,  2  I.  C.  R.  67. 


114:  Equality  IN  Rates.  [§82. 

classification  tcrritoiy  79.95  per  cent,  of  all  commodities  take  a 
less  rate  on  car  loads  than  on  less  than  car  loads.  This  per  cent, 
had  increased  to  this  point  in  1902  from  14.11  per  cent,  imder 
the  classification  of  1887.  In  the  western  classification  territory 
in  1882  only  17.88  per  cent,  of  the  commodities  were  given  a  car 
load  rating,  while  in  1902  the  percentage  had  reached  70.79. 
In  southern  classification  territory  the  percentage  of  commodities 
taking  a  car  load  rating  was  in  1876,  5.93  per  cent.,  and  in  1902 
such  percentage  had  reached  65.61.  This  progressive  recogni- 
tion of  the  law  that  it  is  discrimination  to  charge  for  a  less  ex- 
pensive movement  the  same  as  for  a  more  expensive  one,  would 
seem  to  justify  the  hope  that  this  form  of  discrimination  may 
eventually  be  abolished.  While  the  commission  has  power  to 
prevent  discrimination,  it  has  never  exercised  such  power  to 
compel  a  ear  load  rating.  In  Duncan  v.  Nashville,  C.  &  St.  L. 
R.  Co.,  16  I.  C.  C.  R.  590,  the  commission  recognized  "that  dif- 
ferentiation by  the  carriers  of  car  loads  from  less  than  car  loads 
in  the  application  of  rates  may  be  warranted  under  certain  con- 
ditions," but  declined  "to  enter  an  affirmative  order  establish- 
ing a  differential."  This  question  has  already  been  discussed 
ante  section  63,  where  was  pointed  out  some  of  the  reasons  why 
the  rate  should  be  less  when  freight  moves  in  car  loads  than  when 
it  moves  in  smaller  lots.  There  is  no  equitable  reason  for  a  dif- 
ferent rate  per  car  on  car  loads  and  train  loads."  It  has  been 
held  ^^  in  England  that  a  railway  company  cannot  legally  charge 
a  greater  sum  for  the  carriage  of  a  package  containing  several 
parcels  belonging  to  different  persons  than  for  a  package  con- 
taining several  parcels  all  belonging  to  one  person.  The  Eng- 
lish rule  was  held  by  the  majority  of  the  commission,  Mr.  Com- 
missioner Lane  writing  the  opinion,  to  be  the  law  in  the  United 
States."  To  this  rule  Commissioners  Knapp  and  Harlan  dis- 
sented.    The  question  coming  before  the  circuit  court.  Circuit 

"Burlington,  C.  E.  &  N.  Ey.  Co.  <^  Calif  ornia   Com.   Asso.   v.   Wells 

V.   Northwestern  Fuel   Co.,  31   Fed.  Fargo  Ex.  Co.,  14  I.  C.  C.  E.  422; 

652;    Paine   Bros.   v.   Lehigh   V.   E.  Export   Shipping  Co.  v.  Wabash  E. 

Co.,  7  I.  C.  C.  E.  218.  Co.,  14  I.   C.  C.  E.  437,  and  cases 

*"  Crouch  V.  G.  N.  E.  Co.,  11  Ex.  cited  in  the  prevailing  and  dissent- 

742,  2.5  L.  J.  Ex.  137,  Baxendale  v.  ing  opinions.     Judson  on  Interstate 

L.  &  S.  W.  Ey.,  4  H.  &  C.  130,  35  Commerce,  §  157. 
L.  J.  Ex.  108,  L.  E.  1  Ex.  137,  12 
Jur.    (N.  S.)    274,  14  L.   T.  26,  14 
AV.  E.  458. 


§  83.]  Equality  in  Rates.  175 

Judges  Lacombe,  Ward  and  Noyes  adopted  the  dissenting  opin- 
ion of  Mr.  Commissioner  Knapp.^^  It  is  difficult  to  see  what  in- 
terest a  carrier  has  in  the  question  of  whether  or  not  the  several 
packages  constituting  a  car  load  of  freight  belong  to  one  or  more 
persons.  When  only  one  bill  of  lading  is  issued  and  only  one 
person  is  dealt  with,  why  should  a  carrier  ask  as  to  the  title 
to  the  several  parcels?  Does  not  the  rule  announced  by  the 
court,  supra,  open  an  opportunity  for  illegal  devices?  Suppose 
a  shipper  claims  he  ovma  all  the  packages  and  they  are  billed 
to  one  consignee,  it  would,  in  some  cases,  be  impossible  to  prove 
that  the  shipper's  statement  was  not  true.  In  a  case  where  a 
shipper  concealed  the  true  ownership,  he  would  get  a  car  load 
rating,  while  the  more  honest  shipper  would  pay  the  higher  rate. 
Discrimination  refers  to  the  matter  of  carriage  and  character  of 
the  commodity,  not  to  the  question  of  title.  If  the  shipments 
move  in  the  same  way,  with  the  same  expense  to  the  carrier,  and 
are  of  like  kind  of  traffic,  it  should  make  no  difference  whether 
the  shipper  is  the  real  owner  or  only  trustee  for  the  real  OA\Tiers. 
§  83.  Classification  of  commodities  should  he  without  discrim- 
ination.— Classification  of  commodities,  like  any  other  act  of  the 
carrier  affecting  the  rate  to  be  charged,  must  be  reasonable  and 
such  classification  must  be  based  on  a  real  distinction."  Unless 
the  distinction  is  real,  it  would  violate  section  two  of  the  inter- 
state commerce  act  and  discriminate  between  ''like  kinds  of 
traffic."  A  uniform  classification  would  be  much  better  than  the 
difference  now  existing  in  that  respect  and  the  commission  "has 
sought  as  far  as  practicable  to  secure  the  establishment  through- 
out the  country  of  a  uniform  classification  of  freight.'"  For  a 
description  of  the  different  classifications  in  use  in  the  United 
States  and  an  interesting  and  useful  discussion  of  the  question, 
see  Chapter  IV,  Noyes  American  Eailroad  Rates.  Classification 
is  necessary.  We  have  seen  section  54  ante,  that  low  class  traf- 
fic of  prime  utility  and  moving  in  large  quantities  demands  a 
low  rate.  The  principles  of  classification  are  so  important  and 
are  so  clearly  stated  by  Prof.  Henry  C.  Adams,  Statistician  of 
the  Interstate  Commerce  Commission,"  that  it  is  valuable  to 
reproduce  them  here : 

"Delaware,   L.    &    W.    R.    Co.    v.  »°  Duluth    Shingle    Co.    v.    Dulnth 

Int.  Com.  Com.,  166  Fed.  499.  etc.  H.  Co.,  10  I.  C.  C.  R.  489,  504. 

"  Stowe-Fullor     Co.     v.     Pennsyl-  "  Railways    in    United    States    in 

yania  Co.,  12  I.  C.  C.  R.  215,  220,  1902,  part  2,  pp.  14,  15. 


176  Equality  IN  Rates.  [§83, 

^'Principles  iindcrJijing  freiglit  classifications. — It  was  discov- 
ered early  that  tlie  charges  for  transportation  of  different  arti- 
cles of  freight  could  not  be  apportioned  among  such  articles  with 
regard  alone  to  the  cost  of  carriage.  The  basis  of  determining 
the  charges,  it  was  foimd,  would  confine  to  narrow  limits  the 
movement  of  different  articles  whose  bulk  or  weight  was  large  in 
comparison  to  their  value,  Avhile  heavier  articles  with  less  bulk 
would  be  made  to  pay  disproportionately  low  rates. 

"Under  the  system  of  apportioning  the  charges  strictly  to  the 
cost,  some  kinds  of  commerce  which  have  been  very  useful  to 
the  country  and  have  a  tendency  to  bring  different  sections  into 
more  intimate  business  and  social  relations  could  never  have 
amounted  to  any  considerable  magnitude,  and  in  some  cases 
could  not  have  existed  at  all,  for  the  simple  reason  that  the  value 
at  the  place  of  delivery  would  not  equal  the  purchase  price  with 
the  transportation  added.  The  traffic  would  thus  be  precluded, 
because  the  charge  for  carriage  would  be  greater  than  it  could 
bear.  On  the  other  hand,  the  rates  for  the  carriage  of  articles 
which,  with  small  bulk  or  weight,  concentrated  great  value  would, 
on  that  system  of  making  them,  be  absurdly  low  when  compared 
to  the  value  of  the  articles,  and  perhaps  not  less  so  w^hen  the 
comparison  was  with  the  value  of  the  service  in  transporting 
them. 

"Acocrdingh^  it  was  found  not  to  be  unjust  to  distribute  the 
entire  cost  of  service  among  all  articles  carried  on  a  basis  that 
gave  greater  consideration  to  the  relative  value  of  the  service 
than  to  the  cost.  Such  a  method  w^ould  be  most  beneficial  to  the 
country;  it  w^ould  enlarge  commerce  and  extend  communication, 
and  would  be  better  for  the  railroads  because  of  the  increased 
traffic  which  would  be  brought  to  them. 

"The  value  of  the  article  carried  under  this  system  would  be 
the  most  important  element  in  determining  what  freight  charge 
it  should  bear.  Other  considerations,  however,  equally  important 
must  not  be  overlooked  when  the  freight  classification  is  to  be 
made.  The  classifications  as  now  constructed  have  for  their  foun- 
dation the  following  elements : 

"The  competitive  element  or  the  rates  made  necessary  by 
competition. 

"The  volume  of  the  business — that  is.  the  tonnage  movement. 

"The  direction  in  which  the  freight  moves,  that  is.  whether  it 


§  83.]  Equality  in  Rates.  177 

moves  in  the  direction  in  which  most  of  the  freight  is  transported 
or  in  the  reverse  direction  in  which  empty  cars  are  running. 

"The  value  of  the  article. 

"The  bulk  and  weight. 

"The  degree  of  risk  attending  transportation. 

"The  facilities  required  for  particular  or  special  shipments. 

"The  conditions  attending  transportation,  such  as  furnishing 
special  equipment,  as  in  the  case  of  private  dressed-beef  cars 
or  cars  specially  adapted  for  freight  of  a  perishable  nature,  or 
cars  of  large  size  for  freight  of  extraordinary  bulk. 

"Another  condition  which  has  also  received  consideration  is 
the  analogy  which  the  new  articles  to  be  classified  bear  to  other 
articles  found  in  the  classification. 

"The  conditions  under  which  railroad  companies  can  afford 
to  transport  traffic  have  a  large  influence  in  determining  the 
classification. 

"These  are  the  general  rules  imder  which  classifications  are 
constructed,  and  w^hile  to  a  large  extent  controlling,  the  classi- 
fications are,  notwithstanding,  in  a  great  measure  a  series  of 
compromises,  the  participants  in  which  are  not  alone  the  rail- 
roads, but  also  the  shippers  and  representatives  of  business  in- 
terests throughout  the  country,  the  latter  being  afforded  ample 
opportunity  to  join  with  the  railroads  in  the  discussion  as  to  the 
proper  classification  of  articles  of  shipment  affecting  their  in- 
terests. 

""While  the  pressure  for  reductions  is  very  strong  from  certain 
localities,  concessions  are  not  now  so  readily  granted,  as  the 
territory  covered  by  the  freight  classifications  is  so  large  that 
great  care  in  the  assignment  of  articles  to  particular  classes  must 
be  taken  in  order  to  avoid  working  an  injury  to  any  particular 
section.  The  commercial  and  transportation  interests  are  re- 
garded as  identical,  and  the  welfare  of  the  whole  territory  and 
all  interests  affected  must  be  considered.  It  is,  however,  occa- 
sionally observed  that  particular  localities  are,  to  some  extent, 
preferentially  served  by  the  action  of  carriers  who  resist  pro- 
posed changes  in  the  classification  for  the  reason  that,  in  their 
opinion,  they  will  operate  to  the  prejudice  of  certain  patrons. 
Thus  exceptions  to  the  classification  are  created  by  a  road  con- 
tinuing to  carry  some  articles' at  one  class,  while,  in  the  opinion 
of  a  majority  of  the  roads  using  tlie  classification,  the  articles 
could  well  stand  a  higlier  rating." 


178  Equality  IN  Rates.  [§83. 

Should  a  miiforiu  classification  i"osult  from  the  efforts  therefor 
now  being  put  forward,  the  benefit  would  extend  to  both  carriers 
and  shippers.    AVe  now  have  three  general  classifications: 

First.  Tlie  official  classification,  "which,  speaking  generally, 
applies  north  of  the  Ohio  and  Potomac  Rivers  and  east  of  Chi- 
cago and  the  Mississippi  River. 

Second.  Southern  classification,  ap]ilying  generally  to  the 
territory  south  of  the  Ohio  and  Potomac  Rivers  and  east  of  the 
Mississippi  River. 

Third.  The  Avestern  classification,  applying  to  that  territory 
not  included  in  the  other  two  classifications. 

Besides  the  three  general  classifications  referred  to  there  are 
classifications  published  by  the  railroad  commissions  of  the  States 
of  Illinois,  Iowa,  Georgia,  North  Carolina  and  Florida,  apply- 
ing locally  on  shipments  moving  between  points  in  those  states. 
Between  points  in  the  State  of  Texas  the  western  classification 
governs  in  connection  with  an  exception  sheet  published  by  the 
railroad  commission  of  that  state.  There  is  also  a  classification 
knowTi  as  the  New  England  Freight  Classification,  which  gov- 
erns the  class  rates  between  points  on  the  eastern,  western  and 
northern  divisions  of  the  Boston  and  J\Iaine  Railroad. 

The  commission  has  the  power  to  prohibit  a  classification  that 
works  a  discrimination.  This  power  was  exercised  by  the  com- 
mission and  a  forcible  and  illustrative  opinion  written  by  Mr. 
Commissioner  Knapp  in  Proctor  &  Gamble  v.  Cincinnati,  H.  & 
D.  Ry.  Co.^"  This  order  of  the  commission  was  enforeed.^^  The 
Supreme  Court,  Mr.  Justice  "White  delivering  the  opinion,  con- 
cluded the  discussion  of  the  question  by  saying : 

"Whatever  might  be  the  rule  by  which  to  determine  whether 
an  order  of  the  commission  was  too  general  W'here  the  case  with 
which  the  order  dealt  involved  simply  a  discrimination  as  against 
an  individual,  or  a  discrimination  or  preference  in  favor  of  or 
against  an  individual  or  a  specific  commodity  or  commodities  or 
localities,  or  as  applied  to  territory  subject  to  different  classi- 
fications, w^e  think  it  is  clear  that  the  order  made  in  this  case 
was  within  the  competency  of  the  commission,  in  view  of  the 
nature  and  character  of  the  wrong  found  to  have  been  commit- 
ted and  the  redress  which  that  wrong  necessitated.     Finding, 

'-9  I.  C.  C.  E.  440.  Int.   Com.   Com.,   206  U.   S.   142,  51 

^Cincinnati,   H.   &  D.   Ey.   Co.  v.       L.  Ed.  995,  27  Sup.  Ct.  648. 


§  84.]  Equality  in  Rates.  179 

as  the  commission  did,  that  the  classification  by  percentage  of 
common  soap  in  less  than  car  load  lots  operating  throughout 
official  classification  territory,  brought  about  a  general  disturb- 
ance of  the  relations  previously  existing  in  that  territory,  and 
created  discriminations  and  preferences  among  manufacturers 
and  shippers  of  the  commodity  and  between  localities  in  such 
territory,  we  think  the  commission  was  clearly  within  the  au- 
thority conferred  by  the  act  to  regulate  commerce  in  directing 
the  carriers  to  cease  and  desist  from  further  enforcing  the  class- 
ification operating  such  results." 

§  8-4.  Milling  in  transit. — The  Interstate  Commerce  Act  in 
force  prior  to  the  amendment  of  June  29,  1906,  was  construed 
as  giving  the  commission  no  power  to  compel  carriers  to  grant 
the  privilege  known  as  milling  in  transit.^*  This  privilege  is  de- 
scribed and  its  legality  discussed  by  Llr.  Commissioner  Prouty 
as  follows : '' 

"Generally  in  its  application  the  raw  material  pays  the  local 
rate  into  the  point  of  manufacture ;  when  afterwards  the  manu- 
factured product  goes  forward  it  is  transported  upon  a  rate 
which  would  be  applicable  to  that  product  had  it  originated  in 
its  manufactured  state  at  the  point  where  the  raw  material  was 
received  for  transportation,  whatever  has  been  paid  into  the 
mill  being  accounted  for  in  this  final  adjustment.  Under  this 
or  some  equivalent  arrangement  at  the  present  time  grain  of  all 
kinds  is  milled  and  otherwise  treated  in  transit ;  flour  is  blended, 
cotton  is  compressed,  lumber  is  dressed  and  perhaps  otherwise 
manufactured;  live  stock  is  stopped  off  to  test  the  market. 

''It  may  be  argued  with  much  force  that  the  act  to  regulate 
commerce  does  not  sanction  arrangements  of  this  kind  and  the 
commission  early  in  its  history  intimated  that  such  might  finally 
be  its  conclusion.  Crews  v.  Richmond  &  D.  R.  Co.,  1  I.  C.  C. 
Rep.  401,  1  Inters.  Com.  Rep.  703.  Such  practices  were,  how- 
ever, in  use  to  a  considerable  extent  at  the  time  of  the  passage 
of  the  act  and  since  then  they  have  become  universal.  To  abro- 
gate these  privileges  would  be  to  confiscate  thousands  and 
probably  millions  of  dollars  in  value  by  rendering  worthless 
industrial  plants  which  have  been  constructed  upon  the  faith  of 


'"Diamond  Mills  Co.  v.  Boston  &  "^'Central    Yellow    Pine    Asso.    v. 

M.  R.  Co.,  9  I.  C.  C.  R.  311.  Vicksburg,  S.  &  P.  R.  Co.,  10  I.  C. 

C.  R.  193,  213,  214. 


ISO  Equality  IN  Rates.  [§85. 

their  continuation.  Nor  is  it  a  forced  construction  of  the  statute 
to  hold  that  when  the  product  finally  goes  forward  to  the  point 
of  consumption  it  but  completes  the  journey  upon  which  it  en- 
tered when  the  raw  material  was  taken  up.  There  can  be  no 
doubt  that  the  application  of  this  principle  has  cheapened  the 
cost  of  transportation  and  probably  of  manufactiire.  The  com- 
mission finally  held,  In  re  Unlawful  Rates  in  the  Transporta- 
tion of  Cotton,  8  I.  C.  C.  Rep.  121,  that  cotton  might  be  com- 
presed  in  transit." 

The  commission  has  said :  ^ 

"The  stopping  of  a  commodity  in  transit  for  the  purpose  of 
treatment  or  reconsignment  is  in  the  nature  of  a  special  privilege 
Avhich  the  carrier  may  concede,  but  which  the  shipper  can  not, 
in  the  present  state  of  the  law,  demand  as  a  matter  of  lawful 
right.  Carriers  may  not,  however,  discriminate  between  markets 
nor  between  individuals  in  the  granting  of  such  privileges." 

In  the  Diamond  Mills  Case,  supra,  the  commission  said:  "A 
complete  system  of  interstate  railway  regulation  would  probably 
give  the  regulating  body  authority  to  determine  when  privileges 
of  this  kind  should  be  accorded,  and  upon  what  terms,  for  they 
all  enter  into  and  are  really  part  of  the  rate." 

The  Hepburn  amendment  has  given  to  the  commission  the 
right  and  power  to  regulate  these  matters.  Section  one  of  the 
act  to  regulate  commerce  as  it  now  exists  "  provides :  ' '  The 
term  'transportation'  shall  include  *  *  *  *  all  instrumentalities 
and  facilities  of  shipment  or  carriage  *  *  *  *  and  all  services 
in  connection  with  the  receipt,  delivery^,  elevation,  and  transfer 
in  transit  *  *  *  *  storage  and  handling  of  property  transport- 
ed," and  it  shall  be  the  duty  of  every  carrier  subject  to  the  pro- 
visions of  this  act  to  provide  and  furnish  such  transportation 
upon  reasonable  request  therefor,  and  to  establish  through  routes 
and  just  and  reasonable  rates  applicable  thereto.  Under  this 
amended  law  the  commission  has  rec|uired  milling  in  transit  to 
be  extended  so  as  to  prevent  discrimination.  ^ 

§  85.  Rebilling  illegal  and  discriminatory. — Rebilling  is  a 
privilege  granted  to  certain  markets  and  consists  of  the  right 
to  ship  a  commodity  from  the  point  where  it  is  produced  to  a 

'°  St.  Louis  Hay  and  Grain  Co.  v.  ^"*  Corn     Belt     Meat      Producers' 

Mobile  &  O.  E.  Co.,  11  I.  C.  C.  E.  Asso.  v.  Chicago,  B.  &  Q.  E.  Co.,  14 

90,  101.  I.  C.  C.  E.  376. 

^Post   sec.  500. 


§  85.]  Equality  in  Rates.  181 

distributing  market  where  the  shipper  may  unload,  sort  and 
clean  the  commodity,  thereafter  shipping  the  same  amount  of 
the  same  kind  of  commodity  to  his  customers,  not  at  the  local 
rate  from  the  distributing  point  to  the  final  destination  but  at 
the  balance  of  the  through  rate.  Commissioner  Prouty  illus- 
trates the  practice  at  Kansas  City  as  follows:^" 

"During  the  period  covered  by  this  investigation,  which  was 
from  April  1st  to  July  7th,  1896,  and  for  a  considerable  period 
prior  thereto,  the  rate  on  corn  from  Kansas  City  to  Chicago  was 
20  cents  per  100  pounds.  Hutchinson,  Kansas,  is  a  station  upon 
the  Santa  Fe  Railway,  which  runs  from  there  through  Kansas 
City  to  Chicago,  111.  The  through  rate  from  Hutchinson  to 
Chicago  was  25  cents,  and  the  local  rate  from  Hutchinson  to 
Kansas  City  13^  cents.  A  shipper  from  Hutchinson  would 
forward  a  car  load  of  corn  to  Kansas  City  and  pay  the  local 
rate  of  13^  cents.  If  afterwards  he  concluded  to  send  this 
car  load  on  to  Chicago  he  might  ship  it  by  the  Santa  Fe  Road, 
or  by  any  other  road  between  the  two  points,  at  the  balance  of 
the  through  rate  from  Hutchinson.  The  Chicago  &  Alton  Rail- 
road, for  instance,  would  transport  this  car  load  of  corn  from 
Kansas  City  to  Chicago,  not  for  20  cents  per  100  pounds,  but  for 
11^  cents.  If  the  grain  was  sold  at  Kansas  City,  the  purchaser 
succeeded  to  the  right  of  sending  it  forward  at  the  reduced  rate. 

"When  the  shipper  shipped  this  car  load  of  corn  to  Kansas 
City  he  had,  as  an  ordinary  thing,  no  idea  or  purpose  as  to  its 
ultimate  destination.  It  might  be  eaten  in  Kansas  City;  it 
might  be  sent  to  the  Chicago  market,  or  it  might  go  to  the  Gulf ; 
there  was  nothing  upon  any  of  the  papers  connected  with  its 
transportation  to  indicate  what  its  destination  beyond  Kansas 
City  was,  or  that  it  was  destined  to  any  point  beyond ;  but  if  he 
did  subsequently  elect  to  ship  it  beyond  Kansas  City,  the  rate 
to  any  point  he  might  select  was  the  difference  between  the 
through  rate  from  Hutchinson  to  the  point  of  destination  and 
the  local  rate  which  he  had  already  paid  from  Hutchinson,  and 
this  rate  was  always  different  from  the  rate  between  Kansas 
City  and  the  point  of  destination. 

"The  result,  of  course,  was  that  nearly  all  grain  was  shipped 
into  Kansas  City  upon  a  local  bill  of  lading  in  the  first  instance 

^•Re  Alleged  Unlawful  Rates  and  Grain,  7  I.  C.  C.  R.  240,  241,  242, 
Practices   in   the   Transportation   of      247. 


182  Equality  IN  Rates.  [§85. 

and  was  afterward  sent  forward,  if  it  finally  went  forward,  upon 
a  new  bill  of  lading  at  the  balance  of  the  through  rate.  The 
difference  between  the  through  rate  from  the  point  of  origin  to 
the  point  of  destination  and  the  local  rate  from  the  point  of  ori- 
gin to  Kansas  City  was  not  the  same  in  all  cases,  nor,  indeed,  in 
most  eases,  and  consequently  the  balance  of  the  through  rate  con- 
tinualh^  varied." 

In  the  same  case  the  practice  was  declared  illegal  and  this 
rule  was  stated : 

"An  indispensable  element  in  every  through  shipment  would 
seem  to  be  a  contract  for  such  through  service ;  an  agreement  be- 
tween the  parties  at  the  inception  of  the  carriage  that  the  freight 
shall  be  transported  to  the  point  of  destination  at  the  through 
rate." 

Its  disapproval  of  the  practice  was  indicated  by  the  commis- 
sion in  the  cases  of  Mayor  etc.  of  "Wichita  v.  Atchison,  T.  &  S. 
F.  Ry.  Co.,  9  I.  G.  C.  R.  534,  and  Canon  Falls  Elevator  Co.  v. 
Chicago  etc.  R.  Co.,  10  I.  C.  C.  R.  650.  The  Supreme  Court 
has  indicated  that  such  practice  is  discriminatory,  and  that 
when  shipments  are  made  at  the  balance  of  the  through  rate, 
carriers  are  estopped  to  say  that  such  balance  is  not  a  fair  rate 
on  all  traffic.  That  court,  speaking  through  ]\Ir.  Justice  Brewer, 
said" 

"Under  the  guise  of  a  rebilling  rate,  the  Vicksburg  merchant 
who  dealt  with  this  western  road  was  given  a  rate  of  Sy2  per 
cent,  on  any  grain  that  he  might  see  fit  to  ship  to  Meridian. 
"While  it  may  be  true  that  a  local  railway's  share  of  an  inter- 
state rate  may  not  be  a  legitimate  basis  upon  which  a  state  rail- 
road commission  can  establish  and  enforce  a  purely  local  rate, 
yet,  whenever,  under  the  guise  or  pretense  of  a  rebilling  rate, 
some  merchants  are  given  a  low  local  rate,  the  commission  is 
justified  in  making  that  rate  the  rate  for  all.  It  is  not  bound 
to  inquire  whether  it  furnishes  adequate  return  to  the  railway 
company,  for  the  state  may  insist  upon  equality,  to  be  enforced 
under  the  same  conditions  against  all  who  perform  a  public  or 
quasi  public  service." 

In  Duncan  v.  Nashville,  C.  &  St.  L.  R.  Co.,  16  I.  C.  C.  R.  590, 
the  commission,  speaking  through  IMr.  Commissioner  Clements, 

«•  Alabama  &  V.  E.  Co.  v.  Eail-  U.  S.  496,  51  L.  Ed.  298,  27  Sup. 
road  Commission  of  Mississippi,  203       Ct.  163. 


§  85.]  Equ.vlity  in  Rates.  183 

describes  the  practice  and  states  the  conclusion  of  the  commis- 
sion as  follows: 

"It  is  contended  by  defendants  that  rebilling  or  reshipping 
is  on  the  same  basis  as  milling  in  transit  and  similar  privileges. 
There  is  no  case  before  us  in  this  case  against  milling  in  transit, 
but  it  appears  from  the  record  that  the  privilege  of  milling  in 
transit  is  accorded  uniformly  throughout  the  southeastern  terri- 
tory and  is  in  no  sense  applied  to  Nashville  or  any  other  par- 
ticular point  alone. 

"We  are  not  convinced  that  the  circumstances  and  condi- 
tions under  which  the  reshipping  privilege  is  accorded  at  Nash- 
ville are  so  dissimilar  from  those  obtaining  at  the  other  points 
involved  in  this  traffic  as  to  justify  giving  it  our  sanction  on 
that  ground.  However,  there  are  other  aspects  independent  of 
this  which  lead  us  to  regard  this  privilege  with  disfavor. 

"Illustrating  the  second  feature  of  the  complaint  as  to  the 
alleged  illegality  of  this  privilege,  the  following  example  is 
given :  A  Nashville  dealer  buys  2  cars  of  grain,  1  at  IMemphis 
and  1  at  Louisville.  He  pays,  up  to  Nashville  on  a  IMemphis 
car,  11  cents  per  100  pounds  and  on  the  Louisville  car  10  cents. 
Should  this  Memphis  car  burn,  after  being  put  in  the  ware- 
house, or  be  sold  at  Nashville,  he  would  have  two  expense  bills 
and  one  car  of  grain.  Should  he  sell  a  car  at  Atlanta,  the  Nash- 
ville merchant  would  naturally  use  the  Memphis  bill  which  shows 
a  payment  of  11  cents,  paying  the  balance  of  the  through  rate 
from  Memphis  to  Atlanta  of  9  cents.  He  has,  therefore,  shipped 
the  Louisville  car  to  Atlanta  for  a  total  of  19  cents,  when  the 
through  rate  from  Louisville  to  Atlanta  is  24  cents  and  the 
combination  of  locals  27  cents.  It  is  further  alleged  that  as  con- 
siderable grain  is  consumed  in  Nashville  there  is  always  a  sur- 
plus of  expense  bills  which  may  be  manipulated  in  order  to 
secure  a  cheaper  rate  than  that  provided  in  the  tariffs.  In  an- 
swer to  this  defendants  say  that  the  operation  of  the  reshipping 
privilege,  as  described  in  this  example,  is  limited  by  the  fact  that 
the  Memphis  car  of  grain  is  worth  more  to  the  dealer  at  Nash- 
ville than  the  St.  Louis  car,  by  reason  of  the  difference  in  the 
freiglit  rate,  and,  therefore,  Memphis  grain  is  not  sold  at  Nash- 
ville proper,  but  is  all  reshipped  to  the  southeast.  It  is  to  be 
noted  tliat  the  tariffs  of  the  carriers  contain  a  rule  which  pro- 
hibits trading  in  expense  bills,  and  it  is  hardly  probable  that 


184  Equality  in  Rates.  [§  86. 

such  a  rule  would  appear  if  the  nianipuhition  of  expense  bills  is 
impossible,  as  contended  by  defendants. 

"While  this  manipulation  of  expense  bills  may  not  be  prac- 
ticed to  the  extent  apprehended  by  complainants,  we  may  re- 
mark that  prohibitions  of  law  are  not  invariably  directed  against 
illegal  acts  because  they  may  be  numerous;  a  statute  may  be 
considered  equally  necessary  by  the  legislature  to  prevent  spor- 
adic or  isolated  acts  in  contravention  of  public  policy.  A  prac- 
tice or  privilege  which  permits  the  movement  of  a  single  ship- 
ment at  less  than  the  rate  lawfully  applicable  to  such  move- 
ment is  one  which  the  commission  has,  under  the  law,  no  alter- 
native but  to  condemn. 

"In  considering  a  practice  at  Kansas  City  similar  to  the  one 
under  consideration  (Alleged  Unlawful  Rates  and  Practices,  7 
I.  C.  C.  240),  it  was  found  that  the  practice  of  handling  grain 
in  connection  with  this  privilege  was  manifestly  open  to  many 
abuses.  On  several  occasions  the  commission  has  considered 
practices  of  a  more  or  less  similar  nature  and  has  uniformly  re- 
garded them  with  disfavor.  In  the  case  above  referred  to  the 
finding  was  based  upon  the  fact  that  the  movement  upon  which 
the  through  rate  was  applied  was  in  no  essential  sense  a  through 
movement,  and  we  find  the  same  to  be  true  with  respect  to  re- 
billing  or  reshipping  at  Nashville.  The  grain  upon  its  arrival 
at  Nashville  loses  its  identity,  and  in  everj^  respect  may  be  re- 
garded as  a  local  shipment.  There  is  hardly  a  single  incident 
of  a  through  shipment  involved  in  the  transaction — the  bill  of 
lading  is  local,  the  rate  is  local,  and  there  is  nothing  upon  paper 
connected  with  the  transaction  indicating  that  the  grain  is  to 
be  carried  beyond  Nashville.  If  it  is  the  intention  to  carry  it 
beyond,  there  is  no  present  idea  as  to  the  point  of  destination. 

"We  are  of  the  opinion  that  the  reshipping  or  rebilling  privi- 
lege and  the  application  of  rates  thereunder  obtaining  at  Nash- 
ville is  an  illegal  device  by  means  of  which  grain,  grain  pro- 
ducts, and  hay  may  be  transported  at  less  than  the  tariff  rate  ap- 
plicable thereto;  and  further,  that  it  gives  to  Nashville  undue 
and  illegal  preference  and  advantage  and  subjects  other  points 
in  the  southeast  to  unjust  and  unreasonable  prejudice  and  dis- 
advantage." 

§  86.  Discrimination  by  making  payments  to  elevators  and 
others  elevating  and  sacking  grain. — Elevator  payments  mean 
that  when  a  carrier  brings  grain  to  the  markets  from  the  pro- 


§  86.]  Equality  in  Rates.  185 

ducing  territory  and  delivers  it  to  an  elevator  to  be  sacked  and 
graded,  it  pays  the  elevator  for  sueli  service  a  stated  amount. 
In  some  cases  the  same  payment  is  made  to  stores  and  ware- 
houses having  sacking  facilities.  When  the  matter  first  came 
before  the  commission,  it  was  not  declared  illegal,"'  though  there 
Mr.  Commissioner  Lane  dissented  in  a  strong  opinion.  Subse- 
quently, in  the  same  case,  the  particular  allowance  then  under 
investigation  was  declared  unlawful.''"  The  whole  practice  was 
declared  illegal  in  Traffic  Bureau  Merchants  Exchange  of  St. 
Louis  V.  Chicago,  B.  &  Q.  R.  Co.,"^  where  Mr.  Commissioner 
Prouty  concludes  his  opinion  as  follows : 

"It  is  true  that  this  service  costs  the  railroad  company  but 
little  and  is  of  much  greater  value  to  the  shipper  who  receives 
it.  This  goes  to  the  convenience  and  not  to  the  quality  of  the 
transaction.  It  may  be  in  the  interest  of  economy  that  the  car- 
rier should  render  this  service  for  the  shipper.  We  do  not  now 
hold  that  connnercial  elevation  may  not  properly  be  furnished 
by  a  railroad,  but  we  do  hold  that  such  elevation  must  be  charged 
for  at  what  it  is  reasonably  worth. 

"We  hold  that  a  railroad  company  by  extending  a  privilege 
of  value  to  one  member  of  the  shipping  public,  when  that  privi- 
lege in  the  nature  of  things  is  not  desired  and  can  not  be  used 
by  other  members  of  the  public,  is  thereby  guilty  of  a  discrim- 
ination in  favor  of  the  one  who  can  and  does  use  the  privilege. 
This  discrimination  may  or  may  not  be  undue,  according  to  the 
circumstances  of  each  case.  In  the  great  majority  of  instances 
such  discriminations  are  not  in  fact  unlawful.  But  upon  the 
facts  now  before  us  the  granting  of  free  commercial  elevation 
or  the  payment  of  an  elevation  allowance  must  be  held  an  undue 
discrimination  and  therefore  unlawful.  Such  an  allowance  by 
the  Union  Pacific  at  Omaha  is  not  open  to  the  whole  public, 
but  only  to  those  members  of  the  public  who  have  occasion  to  use 
an  elevator  at  Omaha. 

"The  defendants  in  this  case  will  be  ordered  to  cease  and  de- 
sist from  such  payments  at  Kansas  City  and  other  ]\Iissouri 
River  points.  In  order  that  sufficient  time  may  be  allowed  to 
prevent  any  disturbance  of  business  conditions  this  order  will 


•"  Re   Allowances   to   Elevators  by  »- 14  I.  C.  C.  E.  .315. 

17.  P.  E.  Co.,  10  I.  C.  C.  E.  309,  12  «» 14  I.  C.  C.  E.  317,  331. 

I.  C.  C,  E.  85,  93. 


186  Equality  in  Rates.  [§  86. 

not  take  effect  until  October  1,  and  the  tariffs  of  the  defendants 
withdrawing  the  allowance  must  be  filed  upon  thirty  days'  no- 
tice." 

Mr.  Commissioner  Harlan  concurs  in  the  result,  though  not 
in  all  the  inferences  that  might  be  drawn  from  the  opinion. 
The  authorities  are  discussed  and  reparation  allowed  for  discrim- 
ination caused  by  this  payment  in  Nebraska,  Iowa,  Grain  Co, 
V.  Union  Pac.  R.  Co.*^  The  latest  case  condemning  the  practice 
is  that  of  Duncan  v.  Nashville,  C.  &  St.  L.  Ry.  Co.,  16  I.  C.  C. 
R.  590. 

The  effective  date  of  these  several  orders  prohibiting  elevator 
payments  has  been  by  the  commission  extended  to  January  1, 
1910.  F.  H.  Peavey  &  Co.  and  others  have  filed  in  the  circuit 
court  of  the  United  States  for  the  Western  Division  of  the  West- 
em  District  of  Missouri  their  complaint  against  the  Union  Pa- 
cific Railroad  and  the  members  of  the  Interstate  Commerce  Com- 
mission seeking  to  enjoin  the  commission  from  enforcing  its  order 
and  to  enjoin  the  railroad  from  obeying  it.  This  suit  is  still 
pending  imdetermined. 

The  purpose  of  the  act  to  regulate  commerce  being,  as  said  by 
the  Supreme  Court :  "^  ' '  It  cannot  be  challenged  that  the  great 
purpose  of  the  act  to  regulate  commerce,  whilst  seeking  to  pre- 
vent unjust  and  unreasonable  rates,  was  to  secure  equality  of 
rates  to  all,  and  to  destroy  favoritism,  these  last  being  accom- 
plished by  requiring  the  publication  of  tariffs,  and  by  prohibit- 
ing secret  departures  from  such  tariffs,  and  forbidding  rebates, 
preferences  and  all  other  forms  of  undue  discrimination.  To 
this  extent  and  for  these  purposes  the  statute  was  remedial  and 
is,  therefore,  entitled  to  receive  that  interpretation  which  reason- 
ably accomplishes  the  great  public  purpose  which  it  was  enacted 
to  subserve;"  it  is  difficult  to  see  any  equitable  or  legal  basis 
for  payments  by  carriers  for  services  performed  by  shippers  for 
the  benefit  of  themselves.  These  elevator  payments  were  shown 
in  the  Duncan  Case,  supra,  to  have  been  made  not  only  to  ele- 
vators but  to  warehouses  and  even  stores  having  sacking  facil- 
ities. Such  payments  are  made  at  some  cities  and  denied  to 
others.  Some  men  ship  grain  M'ho  can  not  obtain  the  payments 
because  they   may  not  have   "sacking  or   elevator"   facilities. 


«  15  I.  C.  C.  E.  90.  Int.  Com.  Com.,  200  U.  S.  361,  391, 

«=  New  York,  N.  H.  &  H.  E.  Co.  v.       50  L.  Ed.  515,  521,  26  Sup.  Ct.  272. 


§  87.]  Equality  in  Rates.  187 

The  discrimiuation  violates  both  sections  two  and  three  of  the 
act  to  regulate  commerce.  There  is  no  reason  why  all  grain 
shipped  should  bear  a  total  of  rates  high  enough  to  enable  car- 
riers to  return  under  the  name  of  an  elevator  allowance  to  the 
o^^^lers  of  a  portion  of  that  grain  part  of  the  rate  paid  under 
the  name  of  an  elevator  allowance. 

§  87.  Cars  must  be  furnished  without  discrimination. — Mr. 
Commissioner  Knapp  expresses  the  rule  clearly,  as  follows :  °* 

"The  act  to  regulate  commerce  contains  no  provision  which 
expressly  or  by  proper  implication  gives  this  commission  juris- 
diction in  cases  merely  shoA\ing  delay  or  negligence  in  the  re- 
ceipt, forwarding  or  delivery  of  property  offered  for  transporta- 
tion, and  this  necessarily  includes  failure  on  the  part  of  the  car- 
rier to  furnish  cars  for  the  movement  of  freight  within  a  reason- 
able time.  The  regulating  statute  does,  however,  prohibit  any 
unjust  discrimination  or  wrongful  prejudice,  in  the  provision 
of  cars  or  other  transportation  facilities,  as  well  as  in  the  fixing 
and  application  of  transportation  charges.  This  prohibition  is 
found  in  the  third  section,  which  forbids  in  general  terms  imdue 
or  unreasonable  preference  or  prejudice,  advantage  or  disadvan- 
tage, for  or  against  persons,  localities  or  particular  kinds  of 
traffic,  in  anj^  respect  whatsoever.  Every  shipper  is  legally  enti- 
tled to  fair  opportunity  and  treatment  in  the  use  of  these  public 
utilities,  and  any  discrimination  which  in  substantial  degree  de- 
prives such  shippers  of  such  use  must  be  considered  imjust,  un- 
less forced  by  justifying  conditions.  The  burden  of  proof  is 
upon  the  complainant  to  the  extent  of  showing  discrimination, 
and  then  upon  the  carrier  to  show  that  the  discrimination  was 
justified." 

The  question  has  been  before  the  courts  a  number  of  times. 
These  cases  are  cited  post  section  574.  A  typical  case  is  that 
of  United  States  ex  rel.  Pitcaim  Coal  Company  v.  Baltimore  & 
0.  R.  Co.,  165  Fed.  113,  C.  C.  A.  The  relator  in  that 

•^Eichmond   Elevator   Co.   v.   Pere  v.  Cincinnati  &  M.  V.  E.  Co.,  10  I. 

Marquette  E.  Co.,  10  I.  C.  C.  E.  629,  C.  C.  E.  47 ;   Thompson  v.  Pennsyl- 

6.36,  6.37.     For  other  cases  illustra-  vania  E.   Co.,   10   I.   C.   C.  E.   640; 

ting  the  rates  adopted  by  the  com-  Hawkins  v.  Wheeling  etc.  E.  Co.,  9 

mission   with   reference    to    the    dis-  I.  C.   C.  E.   212;   Glade  Coal  Co.  v. 

tribution    of    cars,    see    Gallogly    v.  Baltimore  &  O.  E.  Co.,  10  I.  C.  C. 

Cincinnati,  H.  &  D.  E.  Co.,  11  I.  C.  E.    226,   and    cases   there   cited    and 

C.  E.  1;   Eaton  v.  Cincinnati,  H.  &  discussed. 

D.  E.  Co.,  11  I.  C.  C.  E.  619;  Parks 


188  Equality  in  Rates.  [§  87. 

case  claimed  that  the  railroad  was  not  supplying  him  with  his 
proper  proportion  of  cars  and  prayed  a  writ  of  mandamus.  It 
was  shown  that: 

"First.  All  cars  placed  at  the  mines  for  the  fuel  or  supply 
coal  of  the  Baltimore  &  Ohio  Railroad  are  not  charged  against 
the  percentage  to  which  the  mines  furnishing  such  coal  are  en- 
titled. 

"Second.  New  mines  are  allotted  an  arbitrary  number  of 
cars,  daily  or  weekly  for  development. 

"Third.  When  foreign  railroad  companies — that  is,  com- 
panies other  than  the  Baltimore  &  Ohio  Railroad  Company — 
send  their  o\^'n  cars  for  fuel  or  supply  coal  to  mines  on  the 
Baltimore  &  Ohio  Railroad,  such  cars  are  treated  as  arbitrary, 
and  are  not  cliarged  against  the  percentage  of  the  mines  to 
which  they  are  sent. 

"Fourth.  Cars  owned  by  individual  companies  or  opera- 
tors, and  commonly  known  as  'individual  cars,'  are  placed  at  the 
mines  of  the  owners  for  shipment  of  their  coal,  and  are  not 
charged  against  the  percentage  of  such  mines. 

"Fifth.  "Whenever  a  shipper  on  the  Baltimore  &  Ohio  Rail- 
road ships  cars  to  Curtis  Bay,  a  tidewater  terminal  of  the 
Baltimore  &  Ohio  Railroad,  and  such  cars  are  handled  promptly 
in  any  one  month,  such  shipper  is  allowed  in  the  succeeding 
month  a  premium  of  fifty  (50)  per  cent,  of  the  number  of  cars 
so  shipped,  in  addition  to  his  regular  percentage. 

"Sixth.  At  certain  points  which  are  noted  on  the  sheets  of 
the  Baltimore  &  Ohio  Railroad,  showing  a  distribution  of  cars  on 
a  percentage  basis,  an  arbitrary  number  of  cars  is  assigned  to 
mines  on  fire. 

"Seventh.  Certain  mines  in  the  immediate  vicinity  of  indus- 
trial plants  are  given  an  arbitrary  allotment  of  cars  which  are 
empty  and  intended  for  loading  at  such  industrial  plants,  if  the 
cars,  w^hen  loaded  with  coal,  are  to  be  consigned  to  such  indus- 
trial plants. 

"Eighth.  "When  annual  contracts  are  placed  for  foreign  rail- 
road fuel  or  supply  coal  with  mines  on  the  line  of  the  Baltimore 
&  Ohio  Railroad,  and  cars  are  furnished  by  such  foreign  road 
for  shipment  of  fuel  or  supplj'"  coal,  then  the  Baltimore  &  Ohio 
Railroad  Company  allots  to  the  mine  shipping  such  coal  an  arbi- 
trary allotment  of  cars  out  of  its  equipment  equal  to  the  foreign 
cars  furnished  for  such  fuel  or  supply  coal. 


§  87.]  Equality  in  Rates.  189 

"After  the  foregoing  arbitrary  cars  are  allotted  and  assigned 
to  the  mines  on  the  Baltimore  &  Ohio  Railroad,  the  remaining 
ears,  it  is  claimed  by  the  Baltimore  &  Ohio  Railroad  Company, 
are  divided  among  all  the  mines  or  operators,  including  those 
enjoying  the  arbitrary'  allotment  of  cars  aforesaid,  on  the  per- 
centage basis." 

The  opinion  of  the  court  is  able  and  exhaustive  and  cites  au- 
thorities supporting  the  conclusions  reached.  Quotations  from 
the  opinion  are  given  because  they  show  a  clear  statement  of 
the  legal  principles  applicable  to  car  distribution.  In  the  course 
of  the  opinion,  these  principles  are  announced : 

"The  purpose  of  the  provisions  of  the  interstate  commerce  act 
relating  to  this  controversy  is  to  prevent  the  railroad  from 
giving  any  undue  or  unreasonable  preference  or  advantage  to 
any  mine  owner  in  any  respect  whatever.  Section  1  of  the  act, 
as  we  have  stated,  makes  it  the  plain  duty  of  the  railroad  to 
furnish  transportation  upon  reasonable  request.  The  duty  is  im- 
posed upon  the  railroad,  and  it  was  clearly  the  intent  of  the 
framers  of  the  act  that  the  railroad  should,  upon  reasonable  re- 
quest for  the  same,  furnish  vehicles  for  transportation.  This 
duty  in  no  sense  of  the  word  rests  upon  the  shipper,  but  relates 
solely  to  the  carrier.  In  this  instance,  as  in  the  case  in  the 
enactment  of  almost  every  statute,  there  must  have  been  strong 
reasons  for  the  passage  of  this  act.  It  is  obvious,  from  even  a 
casual  reading  of  the  statute,  that  at  the  time  of  its  enactment 
certain  shippers  were  imable  to  operate  their  mines  so  as  to  de- 
velop them,  owing  to  the  lack  of  car  service,  due  to  the  unequal 
distribution  of  cars  among  those  who  were  engaged  in  operating 
coal  mines,  and  it  was  to  correct  this  inequality  that  legislation 
of  this  character  was  deemed  to  be  advisable  and  expedient. 
While  the  interstate  commerce  act  is  intended  to  regulate  rates 
as  well  as  facilities,  there  is  no  question  of  a  rate  involved  in 
this  proceeding.  "We  are  called  upon  to  deal  with  facilities,  and 
therefore  it  is  not  necessary  to  discuss  the  question  as  to  the  in- 
tent and  meaning  of  the  statute  in  so  far  as  it  relates  to  the 
regulation  of  rates. 

"In  passing  upon  the  questions  involved,  it  should  be  borne 
in  mind  that  the  statute  casts  upon  the  carrier  the  plain  duty  of 
furnishing  a  fair  and  equitable  distribution  of  facilities  to  the 
shipper.  The  duty  thus  enjoined  can  not  be  evaded  by  the  car- 
rier by  claiming  that  it  is  not  the  owner  of  a  portion  of  the  cars 


190  Equality  in  Kates.  [§  87. 

carried  over  its  lines.  The  dnty  of  furnishinsj  equal  facilities 
relates  to  and  involves  purely  the  question  of  transportation, 
and  when  we  are  called  upon  to  determine  as  to  whether  in  any- 
particular  instance  there  has  been  an  undue  and  unreasonable 
discrimination  or  preference  as  contemplated  by  the  statute,  the 
sole  question  is  as  to  whether  the  entire  equipment  operated  over 
the  lines  of  the  carrier  has  been  fairly  and  equally  distributed 
among  all  the  shippers  along  its  lines  who  are  similarly  situated. 
The  defendant  mine  OA\"ners  insist  that  in  the  purchase  of  in- 
dividual cars  they  have  expended  a  considerable  sum  of  money, 
which  thereby  becomes  a  part  of  their  investment  and  should  be 
treated  as  such,  and  that  it  would  be  unfair  to  them  to  require 
the  carrier  to  charge  such  cars  as  a  part  of  the  percentage  to 
which  they  are  entitled.  This  is  a  matter  which  we  cannot  con- 
sider, inasmuch  as  the  statute  was  not  enacted  for  the  purpose 
of  promoting  the  interests  of  any  particular  mine  owner;  it 
being  limited  to  one  purpose,  to  wit,  the  fair  and  equal  dis- 
tribution of  car  service  by  railroads  or  transportation  compan- 
ies among  all  mine  OA^Tiers  similarly  situated  within  the  terri- 
tory in  which  their  lines  are  operated. 

"It  is  made  the  duty  of  the  carrier  to  move  the  product  of 
the  shipper,  and  in  doing  so,  if  the  carrier  should  by  any  means 
deny  to  a  particular  shipper  his  just  and  proportionate  share 
of  facilities  as  compared  with  other  shippers  similarly  situated, 
then,  in  that  event,  the  shipper  would  undoubtedly  be  entitled 
to  the  relief  afforded  by  section  23  of  this  act.  If,  as  in  this  in- 
stance, a  carrier,  by  contractual  agreement,  operates  individual 
cars  belonging  to  mine  owners  as  a  part  of  its  equipment,  such 
arrangement  cannot  in  the  slightest  degree  relieve  the  carrier 
of  the  duty  to  furnish  equal  facilities  to  all  shippers  similarly 
situated.  To  adopt  any  other  rule  would  be  to  make  it  possible 
for  wealthy  mine  o\Miers,  by  the  purchase  of  car  equipment,  to 
utilize  the  means  of  transportation  operated  by  the  carrier  to 
such  an  extent  as  to  practically  deprive  other  mine  o^-ners  sim- 
ilarly situated  of  any  means  of  transportation,  and  it  was  to 
avoid  this  very  kind  of  discrimination  that  the  provisions  of  sec- 
tions 1  and  3  of  the  interstate  commerce  act  were  enacted.  There 
is  nothing  in  the  interstate  commerce  act  which  prohibits  a  car- 
rier from  making  any  arrangement  it  may  choose  as  respects  the 
o^Miership  of  cars  which  it  operates  on  its  lines.  This  is  a  matter 
which  is  left  entirely  with  the  carrier;  but,  while  such  is  the 


§  87.]  Equ.vlity  in  Rates.  191 

case,  it  is  equally  true  that  tlie  carrier  cannot,  by  any  such  ar- 
rangement, by  indirection,  accomplish  that  which  is  prohibited 
by  the  statute. 

"We  do  not  think  it  was  the  purpose  of  the  framers  of  the 
act  to  undertake  to  secure  the  same  development  of  each  mine, 
but  rather  to  place  the  various  shippers  upon  an  equal  footing  in 
so  far  as  shipping  facilities  were  concerned.  To  any  one  who 
is  acquainted  with  the  coal  business  it  will  be  readily  seen  that, 
under  any  system  of  car  distribution  which  places  a  particular 
mine  owner  in  a  position  where  such  o^\Tier  is  unable  to  make 
prompt  delivery  of  the  product  of  his  mine,  such  failure  on  the 
part  of  the  shipper  to  receive  his  proportionate  share  of  cars 
must  necessarily  result  in  placing  him  at  a  great  disadvantage 
and  in  a  position  where  it  woiild  be  practically  impossible  to 
operate  his  mine,  and  all  this  to  the  very  great  injury  of  the 
consumer,  who,  imder  such  conditions,  is  from  necessity  com- 
pelled to  purchase  from  the  favored  shipper,  at  higher  prices, 
or,  at  least,  with  suppressed  competition,  because  the  favored 
shipper  can  alone,  under  such  conditions,  guarantee  and  secure 
to  him  steady  and  imiform  shipments  of  fuel  absolutely  neces- 

sary,  in  most  cases,  for  the  successful  conduct  of  his  business. 
******** 

"It  is  insisted  that  the  Fairmont  Company  has  large  con- 
tracts, and  therefore  it  must  have  a  preference  in  cars  by  which 
it  might  keep  its  contracts.  This  contention  is  untenable.  If 
this  condition  of  affairs  could  be  pleaded  in  justification  of  a 
discrimination  in  favor  of  a  particular  mine  owner  on  the  part 
of  the  carrier,  then  the  provisions  of  sections  1  and  3  of  the 
act  would  be  without  force,  and  those  mine  owners  who  were 
favored  by  the  carrier  with  an  unlimited  supply  of  car  service 
would  be  in  a  position  to  go  upon  the  market  and  solicit  busi- 
ness with  little  or  no  competition,  thereby  rendering  it  impos- 
sible for  the  weaker  companies  to  successfully  compete  in  the 
open  market  with  their  more  favored  competitors. 

"It  was  earnestly  insisted  by  counsel  for  defendants  below 
that  in  a  case  like  the  one  at  bar  the  rule  that  surrounding  cir- 
cumstances and  conditions  were  to  be  taken  into  account  in  de- 
termining whether  there  had  been  an  undue  and  unreasonnl)le 
preference  in  the  meaning  of  section  3  should  control,  and  that 
the  circumstances  and  conditions  shown  in  this  case  are  such  as  to 
justify  the  defendant   in   making  the   preference  in   question. 


102  Equality  in  Rates.  [§88. 

That  the  snrronndinc:  eireniiistaneos  and  conditions  are  to  be 
considered  in  deterniining  whetlier  tliere  lias  been  an  nndne  and 
unreasonable  preference  in  favor  of  another  particular  shipper 
is  undoubtedly  true;  but  in  determining  that  question  it  neces- 
sarily follows  that  Ave  should  consider  the  circumstances  and 
conditions  surrounding  the  shipper,  and  not  those  that  may 
happen  to  surround  the  carrier.  If  this  were  a  case  where  we 
were  called  upon  to  deal  with  the  question  of  rates  as  between 
rival  lines,  we  would  have  to  consider  the  peculiar  conditions 
and  circumstances  surrounding  the  carrier;  but  that  question  is 
not  involved  in  this  proceeding.  *  *  *  * 

******** 

"In  determining  as  to  Avhether  there  has  been  an  undue  and 
unreasonable  preference  in  any  particular  instance,  the  sole 
question  to  be  considered  is  as  to  whether  all  the  cars  hauled 
over  the  carrier's  lines  have  been  prorated  so  as  to  give  each 
and  every  shipper  on  his  lines  his  proportionate  share  of  facil- 
ities to  which  he  is  entitled  on  the  basis  agreed  upon  as  the 
means  by  which  there  should  be  a  fair  and  equal  distribution  of 
such  car  service.  Therefore,  when  we  consider  the  statute,  the 
provisions  of  which  are  plain  and  immistakable,  we  are  impelled 
to  the  conclusion  that  the  arbitrary  allotment  of  the  fuel  cars 
of  the  company  and  foreign  fuel  cars  is  violative  of  the  pro- 
visions of  the  act.    Section  1,  among  other  things,  provides  that : 

"  'Cars  shall  be  furnished  irrespective  of  ownership  or  any 
contract,  express  or  implied,  for  the  use  thereof.' 

"This  makes  it  the  duty  of  the  company  to  furnish  cars,  re- 
gardless of  ownership  or  of  any  contract,  express  or  implied. 
Therefore  the  question  as  to  the  ownership  of  the  cars  or  the 
purposes  for  -which  they  are  used  can  have  no  bearing  in  this 
controversy.  In  other  words,  in  a  proceeding  instituted  pur- 
suant to  section  23  of  the  act,  it  would  not  be  a  good  defense 
for  the  railroad  company  to  insist  that  it  was  using  a  portion  of 
its  cars  for  the  purpose  of  transporting  fuel,  and  was.  therefore 
unable  to  give  to  the  relator  its  pro  rata  share  of  cars  upon  the 
basis  agreed  upon.  ************* 
In  determining  the  percentage  of  cars  to  which  each  mine  is 
entitled,  the  railroad  company  should  be  guided  solely  by  the 
physical  capacity  of  the  mine  to  furnish  coal  for  shipment." 

§  88.  Rig-ht  of  carrier  to  route  shipments  beyond  its  own  term- 
inus.— In  the  absence  of  a  contract  specifying  the  routing,  the 


§  89.]  Equ^UvIty  in  Rates.  193 

carrier  may  route  freight  passing  beyond  its  o\\ii  lines  over  any 
other  reasonably  convenient  line.  If  there  is  a  contract  on  the 
subject,  the  carrier  must,  of  course,  comply  therewith.  In  the 
absence  of  instructions,  the  carrier  should  route  by  the  most  di- 
rect and  cheapest  route."  There  was  nothing  in  the  act  to  reg- 
ulate commerce  before  the  amendment  of  June  29,  1906,  that 
would  make  illegal  a  contract  by  which  an  initial  carrier  reserved 
to  itself,  as  a  condition  of  guaranteeing  the  through  rates,  the 
right  of  routing  the  shipment  beyond  its  owti  line  as  it  might 
determine.'"  The  Hepburn  amendment,  not  prohibiting  such 
right  nor  specifically  granting  the  power  to  the  commission  to 
prohibit  same,  the  carrier  may  yet  exercise  the  right,  provided, 
of  course,  no  undue  or  unjust  discrimination  results  to  shippers 
thereby.  The  commission  now  has  the  power  to  establish  through 
routes  and  joint  rates  in  the  absence  of  reasonable  or  satisfactory 
through  routes.  This  power,  however,  does  not  prevent  the  car- 
rier from  establishing  its  own  through  route  when  the  one  it 
does  establish  is  reasonable. 

§  89.  Discrimination  in  billing. — An  imjust  discrimination 
may  be  committed  by  billing  one  commodity  under  a  classifica- 
tion to  which  it  does  not  belong  by  giving  it  a  false  weight,  and 
by  letting  one  commodity  go  at  the  net  weight  and  denying  that 
privilege  to  a  like  kind  of  traffic.  This  species  of  discrimination 
and  other  like  devices  and  means  is  prohibited  by  section  10  of 
the  act  to  regulate  commerce  (see  post,  §  529).  The  prohibition 
of  the  statute  applies  to  the  shipper  as  well  as  the  carrier.  The 
net  weight  practice  was  in  effect  a  rebate,"'  as  is  the  other  prac- 
tices mentioned,  all  of  which  are  but  devices  violating  the  act, 
and  subjecting  those  who  are  guilty  to  punishment.  The  of- 
fense is  committed  when  the  goods  are  billed.™  A  shipper  who, 
by  misrepresentation,  obtains  a  lower  classification  and  rate 
than  he  is  entitled  to,  is  liable  to  the  carrier  for  the  difference 
between  the  rate  paid  and  the  rate  he  should  have  paid  under 
a  proper  billing.''     Those  who  in  good  faith  by  mistake  incor- 

■"  Dewey    Bros.    Co.    v.    Baltimore  '^  Proctor  &  Gamble  v.  Cincinnati, 

&    O.   R.   Co.,    11   I.   C.   C.   R.   481;  II.  &  D.  R.   Co.,  9  I.  C.   C.  R.  440, 

Hennepin    Paper    Co.    v.    Northern  484. 

Pac.  R.  Co.,  12  I.  C.  C.  R.  535.  '"Davis  v.  United  States,  104  Fed. 

•«  Southern   Pac.   Co.  v.  Int.   Com.  1 36.  4.3  C.  C.  A.  448. 

Com.,  200  U.  S.  536,  50  L.  Ed.  585,  "^  Missouri,    K.    &    T.    R.    Co.    v. 

26  &up.  Ct,  330.  Trinity  Co.  Lumber  Co.,  1  Tex.  Civ, 

App.  553,  21  S.  W.  290. 


104  Equality  IX  Eates.  [§90. 

rectl}^  describe  goods  are  not  subject  to  the  penal  provision  of 
the  act." 

§  90.  Tariffs  of  rates  must  he  printed,  posted  and  maintained. 
— No  carrier  can  engage  in  interstate  transportation  of  goods 
"unless  the  rates,  fares,  and  charges  upon  which  the  same  are 
transported  by  said  carrier  have  been  filed  and  published."  The 
act  requires  not  only  the  filing  and  publishing  of  such  "rates, 
fares  and  charges,"  but  demands  tliat  the  published  tariffs  must 
be  charged  and  collected.  (See  post,  §§  513  to  519).  No 
change  in  the  tariff  can  be  made  without  reasonable  notice.  No 
provisions  of  the  act  are  more  effective  to  prevent  discrimination 
and  promote  equality  than  are  these.  The  courts  and  the  com- 
mission have  sustained  and  enforced  these  provisions.  It  has 
sometimes  been  contended  that  they  are  unjust  when  applied 
to  import  or  export  traffic.  It  is  true  that  such  provisions  would 
be  inapplicable  to  purely  water  traffic.  It  is  little  or  no  more 
expensive  for  a  ship  to  carry  her  full,  than  it  is  to  carry  her 
minimum  cargo.  For  this  reason,  as  a  ship's  sailing  day  ap- 
proaches and  her  cargo  has  not  been  obtained,  she  does  and 
should  be  allowed  to  reduce  her  rates,  thereby  obtaining  her  full 
load.  This  principle,  however,  does  not  apply  to  that  part  of 
a  through  export  or  import  movement  that  is  had  over  rail  car- 
riers. Ships,  as  well  as  individuals,  are  entitled  to  Imow  what 
the  land  movement  will  cost  and  to  have  this  cost  based  upon 
equality  of  charge.  There  is  nothing  in  the  law  that  makes  the 
rail  carrier  transport  its  domestic  freight  at  the  same  rate  as 
its  proportion  of  an  import  or  export  movement."  On  this  sub- 
ject the  commission,  in  its  twenty-second  annual  report,  pp.  14 
and  15.  says: 

"Effective  April  15.  1908,  and  in  exact  harmony  with  the  de- 
cision of  the  commission  in  the  case  of  Cosmopolitan  Shipping 
Company  v.  Hamburg-American  Packet  Company  et  al.,  13  I. 
C.  C.  Rep.,  266,  a  regulation  was  promulgated  by  the  commission 
requiring  that  tariffs  applying  on  traffic  exported  to  or  imported 
from  foreign  coimtries  not  adjacent  to  the  United  States  must 
show  the  rates,  fares,  and  charges  of  the  inland  carriers  subject 
to  the  act  for  such  transportation  to  the  port  and  from  the  port 

"Atchison,    T.    &    S.    F.    Ey.    Co.  •' Tex.    &    Pac.    Ey.    Co.    v.    Int. 

V.  Goetz,  51  111.  Appl.  1.51;  Davis  v.  Com.    Com.,    162    U.    S.    197,    40   L. 

Pere  Marquette  E.  Co.,  10  I.  C.  C.  Ed.  940,  IG  Sup.  Ct.  666. 
B.  405. 


§  90.]  EQU.U.ITY  IN  Rates.  195 

in  the  United  States,  and  that  such  rates,  fares,  and  charges  be 
so  stated  as  to  be  available  for  all  persons  who  desire  to  use 
them.  It  was  provided  that  as  a  matter  of  convenience  to  the 
public  such  tariffs  might  show  through  rates  to  or  from  foreign 
points,  but  that  if  so  prepared  they  should  also  show  the  inland 
rate  or  fare  of  the  carrier  subject  to  the  act. 

"Representations  were  made  to  the  commission  that  transcon- 
tinental rail  carriers  reaching  our  Pacific  coast  ports  were,  on 
account  of  the  long  rail  haul,  at  a  disadvantage  in  competition 
with  other  carriers  serving  Atlantic  ports  and  transporting  Asi- 
atic traffic  via  the  Suez  Canal  route.  They  therefore  requested 
modification  of  the  requirements  as  to  notice  of  changes  in  rates, 
and  were  given  permission  to  make  changes  in  their  rates  appli- 
cable to  such  import  and  export  traffic  to  or  from  our  Pacific 
coast  ports  upon  notice  of  three  days  of  reduction  in  rates  and 
of  ten  days  as  to  advances  in  rates.  Subsequently,  by  supple- 
mental order,  the  same  permission  was  extended  to  carriers  sub- 
ject to  the  act  reaching  Pacific  coast  ports  in  British  Columbia. 

"The  rail  carriers  in  the  United  States  ordinarily  known  as 
the  transcontinental  lines  withdrew,  effective  November  1,  1908, 
all  their  through  import  and  export  rates  via  the  Pacific  ports 
and  applied  to  the  inland  carriage  of  export  and  import  traffic 
through  those  ports  the  domestic  rates  applicable  on  traffic  to 
and  from  the  ports  proper.  The  Canadian  Pacific  Railway,  in 
connection  with  a  large  number  of  carriers  in  the  United  States 
with  lines  east  of  the  Mississippi  River,  published  and  filed  pro- 
portional class  and  commodity  inland  rates  applicable  to  Van- 
couver, British  Columbia,  on  traffic  destined  to  oriental  ports, 
the  Phillipines,  Australia,  and  New  Zealand,  which  proportional 
rates  are  much  lower  than  the  domestic  rates  applying  on  traffic 
destined  to  Vancouver  proper.  These  tariffs,  as  permitted  by  the 
commission's  rule  and  for  the  information  of  shippers,  show 
through  rates  to  foreign  ports  in  connection  with  certain  named 
steamship  lines. 

"The  rule  of  the  commission  was  freely  commented  upon  in 
the  newspapers,  but  almost  without  exception  from  an  entirely  er- 
roneous standpoint  and  a  total  misunderstanding  or  misconcep- 
tion as  to  what  the  rule  required.  No  opinion  was  expressed  by 
the  commission  that  the  inland  portion  of  export  and  import 
rates  might  not  reasonably  and  properly  be  less  than  the  domes- 
tic rates  to  the  ports.    The  order  simply  required  the  carriers 


196  Equality  in  Rates.  [§  90. 

to  conform  to  the  plain  requirements  of  the  law  and  to  publish, 
in  the  manner  prescribed  by  law,  whatever  rates  they  saw  fit  to 
establish   on   this  traffic." 

If  a  carrier  makes  a  mistake  and  quotes  the  wrong  rate,  the 
shipper  must  nevertheless  pay  the  correct  tariff  rate,  even 
though  he  suffer  severe  loss  thereby,  and  for  this  loss  he  has  no 
remedy .''  In  Poor  v.  Chicago,  B.  &  Q.  R.  Co.,  12  I.  C.  C.  R. 
418,  421,  422,  Mr.  Commissioner  Harlan  gives  the  reason  for 
this  decision  as  follows : 

''And  of  necessity  no  other  conclusion  was  possible  if  the  in- 
tegrity of  this  regulative  legislation  is  to  be  preserved.  If  a 
mistake  in  naming  a  rate  between  two  given  points  is  to  be  ac- 
cepted as  requiring  the  application  of  that  rate  by  the  carrier, 
the  great  principle  of  equality  in  rates,  to  secure  which  was  the 
very  purpose  and  object  of  the  enactment  of  these  several  stat- 
utes, might  as  well  be  abandoned.  If  the  act  of  a  railroad  clerk, 
whether  through  mistake  or  otherwise,  in  quoting  a  less  than  the 
lawful  rate  or  in  inserting  a  lower  rate  in  a  bill  of  lading  is  to 
be  held  to  require  or  to  justify  and  excuse  the  substitution  of 
that  rate,  on  a  particular  shipment,  for  the  lawfully  published 
rate,  the  effectiveness  of  such  legislation  is  at  an  end  and  its 
whole  purpose  destroyed.  For  past  experience  shows  that  bill- 
ing clerks  and  other  agents  of  carriers  might  easily  become  ex- 
perts in  the  making  of  errors  and  mistakes  in  the  quotation  of 
rates  to  favored  shippers,  while  other  shippers,  less  fortunate 
in  their  relations  Avith  carriers  and  whose  traffic  is  less  important, 
would  be  compelled  to  pay  the  higher  published  rates. 

''Stability  and  equality  of  rates  are  more  important  to  com- 
mercial interests  than  reduced  rates.  It  was  instability  and  in- 
equality that  were  the  special  evils  to  be  remedied ;  it  was  the 
possibility  that  one  shipper,  in  one  way  or  another,  whether  by 
mistake  or  otherwise,  could,  and  actually  did,  get  a  lower  rate 

■*Tex.   &   Pac.   Ey.   Co.   v.   Mugg,  Dumas,   43  S.  W.  609;   Chicago,  E. 

202  U.   S.   242,   50  L.  Ed.   1011,   26  I.  &  P.  Ey.  Co.  v.  Hubbell,  54  Kans. 

Sup.   Ct.   628;    Gulf   C.   &   S.   P.   E.  232,   38   Pac.   266,   5   I.   C.   E.   241; 

Co.  V.   Hefley,   158   U.   S.  98,  39  L.  Pond-Decker    Lumber    Co.    v.    Spen- 

Ed.    910,    15    Sup.    Ct.    802;    Poor  cer,  86  Fed.  846,  30  C.  C.  A.  430; 

Grain    Co.    v.   Chicago,   B.   &   Q.   E.  Mobile  &  O.  E.  Co.  v.  Dismukes,  94 

Co.,   12   I.   C.   C.   E.   418,  421,   422;  Ala.  131,  10  So.  289,  4.1.  C.  E.  200; 

Suffern,  Hunt  &  Co.  v,  Indiana,  D.  Atchison,    T.    &    S.    F.    Ey.    Co.    v. 

&  W.  Ey.   Co.,  7  I.   C.   C.  E.   255,  Holmes,  18  Okla,  92,  90  Pac.  22. 
278;    Houston   &    T.    C.   E.    Co.   v. 


§  90.]  Equality  ix  Rates.  197 

than  another  shipper  that  led  to  the  more  stringent  legislation. 
That  evil  the  present  amended  statute  meets  in  substantially  the 
language  of  previous  legislation." 

While  Mr.  Commissioner  Harlan  is  undoubtedly  correct  in 
his  conclusion  as  the  law  now  stands,  the  ruling  is  one  that  may 
and  does  frequently  work  serious  injury  to  shippers.  On  this 
subject  the  commission,  in  its  twenty-second  annual  report,  pp. 
16,  17,  aptly  says : 

"The  act  to  regulate  commerce  requires  carriers  to  collect 
their  published  rates,  under  severe  penalty,  and  the  Supreme 
Court  of  the  United  States  has  held  that  this  must  be  done  even 
though  the  carrier  has  quoted  to  the  shipper  a  different  rate, 
in  good  faith,  upon  which  the  shipper  has  acted. 

"The  practical  hardship  of  this  rule  is  illustrated  by  the  last 
case  in  which  it  was  applied  by  that  court.  Texas  and  Pacific 
Railway  Company  v.  Mugg.  202  U.  S.  242,  50  L.  Ed.  1011,  26 
Sup.  Ct.  628.  Here  the  plaintiff  applied  for  a  rate  on  coal  from 
a  point  in  Arkansas  to  a  point  in  Texas  and  was  quoted  a  rate 
of  $1.25  upon  one  kind  and  $1.50  upon  another.  Upon  the 
strength  of  this  quotation  he  made  sale  of  three  carloads  for  a 
delivered  price  at  the  Texas  point.  In  fact,  the  published  rate 
was  $2.75  upon  one  kind  and  $2.85  upon  the  other,  and  the 
shipper  was  obliged  to  pay  upon  the  arrival  of  the  coal  in  Texas 
$140.18  more  than  would  have  been  due  under  the  rates  quoted. 
This  converted  the  transaction  from  a  profit  to  a  loss,  and  his 
suit  was  to  recover  damages  thus  occasioned.  The  court,  as  has 
already  said,  held  that  no  recovery  could  be  had. 

"The  statute  -requires  carriers  to  post  for  public  inspection 
their  tariffs  at  all  stations  where  freight  is  received  by  them  for 
transportation.  The  theory  of  the  act  is  that  the  shipper  can  at 
all  times  by  reference  to  these  schedules  ascertain  for  himself 
the  rate,  and  if  this  were  so  there  would  be  no  hardship  in  re- 
quiring him  to  know  what  the  rate  was.  In  practice  all  this  is 
quite  different.  The  tariffs  of  railways  are  very  voluminous. 
It  has  been  found  practically  im])ossible  to  comply  with  the  lit- 
eral requirement  of  the  statute  as  to  posting.  The  present  reg- 
ulations of  the  commissicm  permit  carriers  in  most  cases  to  keep 
on  file  in  their  offices  at  their  various  stations  tariffs  showing 
their  outbound  rates,  but  the  const  ruction  of  these  scliedules 
is  necessarily  such  that  the  ordinary  shipper  without  sjx'cial  ex- 
perience can  not,  in  the  great  majority  of  instances,  ascertain  for 


198  EqumjIty  IN  Rates.  [§91- 

himself  from  an  inspection  of  the  tariffs  what  the  rates  are.  He 
must  rely  upon  the  statement  of  the  railroad  agent.  The  pre- 
sumption of  law  that  he  himself  knows  or  may  know  the  rate  is 
not  in  accordance  with  the  fact. 

"The  commission  feels  that  to  require  the  shipper  to  ascer- 
tain for  himself  at  his  peril  the  rate  imposes  upon  him  an  undue 
burden.  The  railwaj^  should  know  what  its  established  charges 
are,  and  may  fairly  be  required  to  state  in  writing,  when  a  writ- 
ten request  is  made  by  the  shipper,  the  rate  which  it  has  pub- 
lished and  maintains  in  force.  "VVe  call  special  attention  to  this 
matter  as  one  of  immediate  and  general  concern,  which  discloses 
the  need  of  an  appropriate  remedy,  and  urgently  request  that 
a  suitable  measure  be  promptly  enacted." 

It  is  undoubtedly  true  that  shippers  ordinarily  do  not  know 
and  it  would  some  times  take  an  expert  to  find  out  what  a  par- 
ticular rate  is,  and,  therefore,  reliance  must  be  had  on  the  in- 
formation furnished  b^^  the  agenis  of  the  carriers.  The  com- 
mission points  out  the  evil  but  suggests  no  remedy.  It  would 
probably  be  an  effective  remech^  to  allow  the  commission  to  award 
reparation  in  such  cases  as  it  might  find  were  based  upon  an  hon- 
est mistake  of  the  carrier.  The  commission  would  be  able  to 
prevent  the  evils  that  ]\Ir.  Commissioner.  Harlan  points  out ;  and, 
if  necessary  to  prevent  discrimination,  the  rate  mistakenly  given 
might  be  open  to  all  who  ship  contemporaneously  with  the  ship- 
per who  relied  on  the  misquoted  rate. 

§  91.  Different  rates  over  the  same  line  in  opposite  directions. 
— In  the  case  of  Duncan  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,"  the 
commission  said: 

"The  complainant  was  not  discriminated  against  in  being 
allowed  on  his  shipments  west,  to  Los  Angeles,  the  lowest  avail- 
able rate,  and  there  was  no  discrimination  against  him  on  his 
shipments  east  to  Louisville,  as  he  was  charged  the  general  rate 
exacted  of  all  shippers.  His  complaint  in  reference  to  the 
disparity  between  the  rates  charged  him  on  his  east  and  west 
bound  shipments,  respectively,  is  not  properly  one  of  unjust 
discrimination  under  the  third  section  of  the  act  to  regulate 
commerce,  but  rather  calls  in  question  the  reasonableness  of  the 
higher  rate.  The  claim  is  in  substance,  that  the  rate  of  $350 
eastward  is  imreasonable  in  view  of  the  fact  that  the  rate  over 

"Duncan  v.  Atchison,  T.  &  B.  F.       3S5. 
E.  Co.,  6  I.  C.  C.  E.  85,  4  I.  C.  E. 


§  91.]  Equality  in  Rates.  199 

the  same  line  and  between  the  same  points  westward  is  only 
$263.  This  fact  alone  is  relied  upon  to  support  the  charge. 
The  two  rates  have  no  necessary  connection  or  relation,  and  the 
fact  that  a  rate  over  a  road  or  line  in  one  direction  is  materially 
higher  than  the  rate  on  the  same  class  of  traffic  over  the  same 
road  or  line  and  between  the  same  points  in  the  opposite  direc- 
tion does  not,  as  in  the  case  of  hauls  over  the  same  line  in  the 
same  direction,  establish  prima  facie  the  unreasonableness  of  the 
higher  rate.  This  would  appear  to  be  especially  true  where 
the  hauls  are  of  as  great  length  as  those  now  under  considera- 
tion. It  is  moreover  in  evidence,  as  remarked  above,  that  the 
Svest-bound  movement  of  the  traffic  termed  'emigrants'  move- 
ables' is  double  the  east-bound  movement,"  and  the  goods  ship- 
ped west  as  ''emigrants'  moveables"  are  "materially  lower  in 
value"  than  those  shipped  east.  It  may  be  conceded  that  the 
much  greater  volume  of  the  traffic  moved  west  than  east  is  to 
some  extent  attributable  to  the  low^er  rate  west,  but  the  tide  of 
emigration  is  naturally  from  a  comparatively  old  and  thickly 
populated  country  like  the  east  to  a  new  and  sparsely  settled 
country  like  the  west.  No  evidence  as  to  the  unreasonableness 
of  this  rate  in  itself  has  been  offered." 

This  ruling  has  been  repeated  several  times  by  the  commis- 
sion. In  the  Duncan  Case,  supra,  the  facts  of  the  case  showed 
a  much  heavier  movement  of  the  goods  transported  under  the 
shipment  there  in  controversy  towards  the  west  than  towards  the 
east.  This  fact  is  one  of  the  causes  that  affects  rates  and  may 
always  be  considered.  The  amount  of  traffic  of  a  particular  kind 
that  moves  in  a  particular  direction  may  properly  constitute  a 
different  circumstance  and  condition.  The  conclusion  of  the 
commission  was  correct,  but  what  was  there  stated  should  not  be 
accepted  as  a  general  rule.  If  the  movement  both  ways  is  prac- 
tically equal  and  there  are  no  other  differentiating  circum- 
stances, the  fact  that  a  rate  over  a  road  or  line  in  one  direction 
is  materially  higher  than  the  rate  on  the  same  class  of  traffic 
over  the  same  road  or  line  and  between  the  same  points  in  the 
opposite  direction  does,  as  in  the  case  of  hauls  over  the  same 
line  in  the  same  direction,  oslablish  prima  facie  the  unreason- 
ableness of  the  higher  rate. 

The  facts  in  ]\TacLoon  v.  Boston  &  M.  U.  Co.,'"  wbile  staled  by 

'"9  I.  C.  C.  R.  642,  645. 


SOO  Equality  IN  Rates.  [§91. 

the  coiniiiission  to  be  practically  the  same  as  in  the  Duncan  Case, 
do  not  so  clearly  sn]iport  the  holding  as  did  the  facts  in  the 
last  named  case.  There  was  no  evidence  as  to  the  relative 
amount  of  traffic  each  way  and  the  accommodations  seemed  to 
have  been  practically  the  same.  The  charge  was  greater  going 
west  than  going  east.  This  case  would  indicate  a  disposition 
on  the  part  of  the  commission  to  make  it  a  general  rule  that  there 
is  no  relation  between  traffic  in  opposite  directions  over  the 
same  route.  In  Hewins  v.  New  York,  N.  II.  &  II.  R.  Co.,"  the 
MacLoon  Case  is  cited  and  followed.  It  will  be  conceded  that 
circumstances  may  exist  justifying  a  difiPerence  in  rates  over  the 
same  line  in  opposite  directions ;  but  in  the  absence  of  proof 
of  such  circumstances,  such  difference  should  be  held  prima 
facie  evidence  of  unjust  discrimination.  Judge  Speer,  in  Int. 
Com.  Com.  v.  Louisville  &  N.  R.  Co.,"  quoted  from  the  Duncan 
Case,  supra,  and  announced  a  rule  more  in  harmony  with  the 
purpose  of  the  act  to  regulate  commerce.    He  said: 

"Where  the  movement  in  a  certain  direction  is  greatly  in 
excess  of  the  movement  in  another,  or  where  there  is  a  substan- 
tial difference  in  the  cost  of  operation  by  reason  of  heavy  grades, 
or  because  the  tonnage  runs  largely  in  one  direction,  it  is  con- 
ceivable that  a  discrimination  in  rates  may  not  be  unreasonable-, 
but  do  any  of  these  conditions  appear  in  this  case?  On  the  con- 
trary, by  the  evidence  of  a  principal  witness  for  the  respondents 
the  contrary  is  made  to  appear.  ]\Ir.  Saltmarsh,  division  super- 
intendent of  the  Pensacola  &  Atlantic  Railway  was  asked :  '  Is 
there  any  reason  why  the  haul  east  over  the  Pensacola  &  At- 
lantic division  should  be  more  expensive  than  the  haul  over  the 
division  for  the  same  distance  west?'  He  replied:  'So  far  as 
the  actual  cost  of  transportation  is  concerned,  perhaps  not ;  but 
the  bulk  of  our  business  is  southbound,  and  we  have  empty  cars 
coming  north.  To  the  extent  that  this  is  the  case,  it  would,  oi 
course,  make  a  difference  in  the  cost  of  transportation  in  each 
direction.'  Surely  it  cannot  with  good  reason  be  urged  that 
this  would  justify  the  tremendous  difference  in  rates  of  which 
complaint  is  here  made." 

Mr.  Commissioner  Clements,  in  Weil  v.  Penn.  Co.,™  announces 
the  rule  in  language  that  would  indicate  that  the  commission  re- 


10  I.  a  C.  K.  221,  224.  ""11  I.  C.  C.  E.  627,  629,  630. 

118  Fed.  613,  623. 


§  91.]  Equality  in  Rates.  201 

quires  a  difference  in  circumstances  other  than  the  mere  fact 
that  the  traffic  moves  in  opposite  directions.    He  there  said : 

"While  the  law  recjuires  all  rates  to  be  reasonable  and  just, 
and  forbids  unreasonable  discriminations,  it  does  not  prescribe 
any  measure  or  test  of  reasonableness  in  either  case. 
It  is  manifest  that  the  reasonableness  of  every  rate  or  discrim- 
ination called  into  question  must  be  determined  and  measured 
by  the  circumstances  and  conditions  affecting  the  business.  The 
potency  of  any  particular  fact,  circumstance,  or  condition  in  a 
given  case  is  to  such  an  extent  dependent  upon  or  modified  by 
others,  so  that  that  which  is  of  great  importance  in  one  case  may 
be  of  minor  consequence  in  another.  It  follows  that  it  can  not 
be  required  in  reason  that  rates  must  in  all  cases  be  the  same  in 
both  directions  between  the  same  points  any  more  than  they  can 
be  made  on  a  strictly  uniform  mileage  basis." 

This  conclusion  as  to  the  opinion  of  the  commission  is  further 
strengthened  by  the  language  of  Mr.  Commissioner  Clements  in 
Phillips  V.  Grand  Trunk  AY.  R.  Co.,'"  where  he  says: 

"Generally  rates  are  lower  for  the  transportation  of  west- 
bound traffic  than  for  eastbound,  although  there  are  exceptions 
to  this  general  rule.  This  feature  in  the  adjustment  of  rates  is 
probably  due  more  to  the  preponderance  of  empty-car  movement 
westward  than  to  any  other  cause,  though  other  varying  causes 
have  doubtless  entered  into  the  matter  in  greater  or  less  degree 
in  respect  to  different  commodities.  Some  disparity,  therefore, 
between  the  rates  on  eastboimd  and  westboimd  traffic  seems  to 
be  justified  by  the  conditions  resulting  from  the  empty-car 
movement  in  one  direction.  Within  reason,  therefore,  such  dis- 
parity in  rates,  though  a  discrimination,  is  not  unreasonable  or 
unlawful.  ****** 

"No  satisfactory  reason  appears  why  there  should  be  a  greater 
disparity  between  the  rates  on  the  traffic  in  question  eastbound 
and  westbound  than  that  which  prevails  on  articles  of  substan- 
tially the  same  character  in  the  classes;  yet  it  is  not  clear 
on  the  other  hand,  but  that  a  somewhat  greater  disparity  in 
these  rates  than  would  be  indicated  by  the  classes  might  exist 
without  unjust  discrimination  against  the  complainant.  But 
it  is  clear  that  some  readjustment  of  these  differences  is  re- 
quired to  promote  the  ends  of  justice  and  the  requirements  of 

«°  11  I.  C.  C.  K.  659,  664,  665. 


202  Eqitaijty  in  Rates.  [§  92. 

the  law.  This  record,  however,  scarcely  furnishes  an  adequate 
basis  for  the  determination  of  the  exact  changes  that  should  be 
made. 

"The  case  will,  therefore,  be  retained  with  the  expectation 
that  the  carriers  will  make  a  substantial  readjustment  of  these 
rates  in  accordance  with  the  views  herein  expressed." 

§  92.  Discrimination  by  granting  free  service. — Free  tickets, 
fares,  pasvses,  or  free  transportation  for  passengers  are  prohib- 
ited, with  certain  exceptions,  by  paragraph  four  of  section  one 
of  the  act  to  regulate  commerce  as  amended  by  the  act  of  April 
13,  1908.  See  post  §  505.  The  provisions  requiring  the  tariff 
rates  to  be  charged  and  collected  would  prevent  the  free  trans- 
portation of  property,  except  such  as  may  be  had  under  section 
22  of  the  act,  which  section  provides:  "Nothing  in  this  act  shall 
be  construed  to  prevent  railroads  from  giving  free  carriage  to 
their  officials  and  employees."  Express  companies  are  now 
bound  by  the  act  to  regulate  commerce,  and  there  is  no  exception 
permitting  such  companies  to  issue  franks  to  their  officers.  The 
Supreme  Court  has  said :  *^ 

"The  amendment  to  the  interstate  commerce  act  by  the  act 
of  June  29,  1906,  c.  3591,  34  Stat.  584,  brought  express  com- 
panies within  the  terms  of  the  act.  The  express  companies  were 
therefore  obliged  to  file  and  publish  their  rates  for  the  trans- 
portation of  property  under  section  6  of  the  interstate  commerce 
act  as  amended,  and  it  is  admitted  in  the  record  that  they  have 
done  so.  *  *  *  *  *       .         * 

"It  is  enough  to  say  that  it  was  the  purpose  of  this  law  to  re- 
quire the  publication  and  posting  of  tariff  rates,  open  to  public 
inspection,  and  at  the  service  of  all  shippers  alike ;  to  prohibit 
and  punish  secret  departures  from  the  published  rates,  and  to 
prevent  and  punish  rebating,  preferences  and  all  acts  of  undue 
discrimination.  As  was  said  by  ]\Ir.  Justice  White,  speaking  for 
the  court  in  New  York,  New  Haven  &  Hartford  R.  R.  Co.  v.  In- 
terstate Commerce  Commission,  200  IJ.  S.  361,  50  L.  Ed.  515, 
26  Sup.  Ct.  272 : 

"  'The  all  embracing  prohibition  against  either  directly  or 
indirectly  charging  less  than  the  published  rates  shows  that  the 
purpose  of  the  statute  was  to  make  the  prohibition  applicable  to 

*^  American  Express  Co.  v.  United       L.  Ed.         ,  29  Sup.  Ct. 
States,  212  U.  S.  522,  531,  532,  53 


§  93.]  Equality  in  Kates.  203 

every  metliod  of  dealing  by  a  carrier  by  which  the  forbidden  re- 
sult could  be  brought  about.  If  the  public  purpose  which  the 
statute  was  intended  to  accomplish  be  borne  in  mind,  its  mean- 
ing becomes,  if  possible  clearer. ' 

In  view  of  the  interpretation  thus  given  to  the  act  we  think 
it  cannot  be  doubted  that  the  transportation  of  property, 
such  as  is  shown  in  this  case,  upon  franks  issued  by  the  ex- 
press companies,  is  within  the  terms  of  the  act.  It  permits  those 
who  hold  these  franks  to  obtain  the  transportation  of  such  prop- 
erty as  is  covered  thereby  without  compensation,  or,  if  the  trans- 
portation has  been  paid,  it  is  refunded  to  the  shipper  upon  the 
presentation  of  the  frank.  "Within  the  terms  used  in  the  Elkins 
act,  such  transportation  enables  one  class  of  persons  to  obtain 
transportation  at  a  different  and  less  rate  than  that  named  in 
the  published  rates." 

§  93.  Commodities  clause.  Illegal  for  carriers  to  transport  com- 
modities produced  or  owned  by  them  or  in  which  they  are  inter- 
ested.— The  owTiership  or  control  by  carriers  of  a  particular 
commodity  gives  such  carriers  an  opportunity  to  transport  such 
commodity  and  sell  it  at  less  than  can  its  competitors  who  have 
no  means  of  transportation  and  must  pay  the  carrier  to  trans- 
port these  commodities  of  like  kind.  The  carrier  can  do  this 
because  it  can  lose  some  of  the  rate  its  competitor  must  pay  and, 
therefore,  undersell  all  others.  This  evil  was  apparent  and  the 
commission  had  sought  to  remedy  it  so  far  as  it  could  Avith  the 
limited  power  it  had  in  this  respect  before  the  passage  of  the 
Hepburn  law.  Prior  to  the  passage  of  the  Hepburn  amendment 
containing  this  clause  the  Interstate  Commerce  Commission 
brought  its  bill  seeking  to  enjoin  a  contract  described  in  the  al- 
legation as  follows :  ^ 

"In  the  spring  of  1903  the  Chesapeake  &  Ohio  made  a  verbal 
agreement  with  the  New  Haven  to  sell  to  that  road  60,000  tons 
of  coal,  to  be  carried  from  the  Kanawha  district  to  Newport 
News,  and  thence  by  water  to  Connecticut,  for  delivery  to  the 
buyer  at  $2.75  per  ton,  and  that  a  considerable  portion  had  al- 
ready been  delivered  and  the  remainder  was  in  process  of  de- 
livery. It  Avas  averred  that  the  price  of  the  coal  at  the  mines 
where  the  Chesapeake  &  Ohio  bought  it,  and  the  cost  of  trans- 

»^  New  York,  N.  H.  &  H.  E.  Co.  v.       L.  Ed.  515,  21  Sup.  Ct.  272. 
Int.   Com.   Com.,   200  U.  S.   361,   50 


204  Equality  IN  Rates.  [§92. 

portation  from  Newport  News  to  Connecticut,  would  aggregate 
$2.47  per  ton,  thus  leaving  to  the  Chesapeake  &  Ohio  only  about 
28  cents  a  ton  for  carrjnng  the  coal  from  the  Kanawha  district 
to  Newport  News,  whilst  the  published  tariff  for  like  carriage 
from  the  same  district  was  $3.45  per  ton." 

Upon  this  allegation,  the  court  formulated  the  question  in- 
volved as  follows: 

"The  question,  therefore,  to  be  decided  is  this:  Has  a  carrier 
engaged  in  interstate  commerce  the  power  to  contract  and  sell 
and  transport  in  completion  of  the  contract  the  commodity 
sold,  when  the  price  stipulated  in  the  contract  does  not  pay  the 
cost  of  the  purchase,  the  cost  of  delivery,  and  llie  published 
freight  rates?" 

The  evils  of  carriers  engaging  in  the  purchase  and  sale  of 
commodities  transported  by  them  was  forcibly  shown  in  the 
course  of  the  opinion.  No  better  statement  of  the  evils  the  com- 
modity clause  sought  to  remedy  can  be  given  than  the  Supreme 
Court  here  gave  and  such  statement  is  here  inserted : 

"That  a  carrier  engaged  in  interstate  commerce  becomes  sub- 
ject as  to  such  connnerce  to  the  commands  of  the  statute,  and 
may  not  set  its  provisions  at  naught  whatever  otherwise  may  be 
its  power  when  carrying  on  commerce  not  interstate  in  char- 
acter, cannot  in  reason  be  denied.  Now,  in  view  of  the  positive 
command  of  the  2d  section  of  the  act  that  no  departure  from 
the  published  rate  shall  be  made,  directly  or  indirectly,  how  can 
it  in  reason  be  held  that  a  carrier  may  take  itself  from  out  the 
statute  in  every  case  by  simply  electing  to  be  a  dealer  and  trans- 
port a  commodity  in  that  character?  For,  of  course,  if  a  car- 
rier has  a  right  to  disregard  the  published  rates  by  resorting  to 
a  particular  form  of  dealing,  it  must  follow  that  there  is  no  ob- 
ligation on  the  part  of  a  carrier  to  adhere  to  the  rates,  because 
doing  so  is  merely  voluntary.  The  all-embracing  prohibition 
against  either  directly  or  indirectly  charging  less  than  the  pub- 
lished rates  shows  that  the  purpose  of  the  statute  was  to  make 
the  prohibition  applicable  to  every  method  of  dealing  by  a  car- 
rier by  which  the  forbidden  result  could  be  brought  about.  If 
the  public  purpose  wdiich  the  statute  was  intended  to  accomplish 
be  borne  in  mind,  its  meaning  becomes,  if  possible  clearer.  What 
was  that  purpose?  It  was  to  compel  the  carrier,  as  a  public 
agent,  to  give  equal  treatment  to  all.  Now  if,  by  mere  fact  of 
purchasing  and  selling  merchandise  to  be  transported,  a  car- 


§  93.]  Equality  in  Rates.  205 

rier  is  endowed  with  the  power  of  disregarding  the  published 
rate,  it  becomes  apparent  that  the  carrier  possesses  the  right  to 
treat  the  owners  of  like  commodities  by  entirely  different  rules. 
That  is  to  say,  the  exercise  of  such  a  power  in  its  essence  would 
enable  a  carrier,  if  it  chose  to  do  so,  to  select  the  favored  per- 
sons from  whom  he  would  buy,  and  the  favored  persons  to  whom 
he  would  sell,  thus  giving  such  persons  an  advantage  over  every 
other,  and  leading  to  a  monopolization  in  the  hands  of  such 
persons  of  all  the  products  as  to  which  the  carrier  chose  to  deal. 
Indeed,  the  inevitable  result  of  the  possession  of  such  a  right 
by  a  carrier  would  be  to  enal)le  it,  if  it  chose  to  exercise  the 
power,  to  concentrate  in  its  own  hands  the  products  which  were 
held  for  shipment  along  its  line,  and  to  make  it,  therefore,  the 
sole  purchaser  thereof  and  the  sole  seller  at  the  place  where  the 
products  w^ere  to  be  marketed;  in  other  words,  to  create  an  abso- 
lute monopoly.  To  illustrate :  If  a  carrier  may,  by  becoming 
a  dealer,  buy  property  for  transportation  to  a  market  and  elim- 
inate the  cost  of  transportation  to  such  market,  a  faculty  pos- 
sessed by  no  other  owner  of  the  commodity,  it  must  result  that 
the  carrier  would  be  in  a  position  where  no  other  person  could 
ship  the  commodity  on  equal  terms  with  the  carrier  in  its  ca- 
pacity of  dealer.  No  other  person  owning  the  commodity  being 
thus  able  to  ship  on  equal  terms,  it  would  result  that  the  owners 
of  such  commodity  woukl  not  be  able  to  ship,  but  would  be  com- 
pelled to  sell  to  the  carrier.  And  as,  by  the  departure  from 
the  tariff  rates,  the  person  to  whom  the  carrier  might  elect  to 
sell  would  be  able  to  buy  at  a  price  less  than  any  other  person 
could  sell  for,  it  would  follow  that  such  person,  so  selected  by  the 
carrier,  would  have  a  monopoly  in  the  market  to  which  the  goods 
were  transported.  And  that  the  result  arising  from  an  admis- 
sion of  the  asserted  power  of  the  carrier  as  a  dealer  to  disregard 
the  published  rates  conduces  immediately,  and  not  merely  re- 
motely, to  the  production  of  the  injurious  results  stated,  is  not 
only  demonstrated  by  the  very  nature  of  things,  but  is  estab- 
lished to  be  the  case  by  the  facts  indisputably  shown  on  this 
record.  For  here  it  is  unquestioned  that  the  Chesapeake  &  Ohio, 
as  a  result  of  its  being  a  dealer,  had  become,  long  prior  to  the 
adoption  of  the  interstate  commerce  law,  and  continued  to  be 
thereafter,  up  to  the  passage  of  the  West  Virginia  statute  pro- 
hil)iting  a  carrier  from  dealing  in  coal,  virtually  the  sole  pur- 
chaser and  seller  of  all  the  coal  produced  along  the  line  of  its 


206  Equality  IN  Rates.  [§93. 

road.  That  this  result  was  not  merely  accidental,  but  was  in 
effect  engendered  by  the  power  of  the  carrier  to  deal  and  trans- 
port a  commodity,  is  illustrated  by  the  case  of  Atty.  Gen.  v. 
Great  Northern  R.  Co.,  29  L.  J.  Ch.  N.  S.  794.  In  that  case 
Vice  Chancellor  Kindersley  was  called  upon  to  determine  wheth- 
er dealing  in  coal  by  tlie  railway  company  was  illegal,  because 
incompatible  with  its  duties  as  a  public  carrier  and  calculated 
to  intlict  an  injury  upon  the  public.  In  deciding  that  the  act 
of  Parliament  granting  the  charter  to  operate  the  railway  im- 
plied a  prohibition  against  the  company's  engaging  in  any  other 
business,  the  reason  for  the  rule  was  thus  expressed  (p.  798)  : 

"  'These  large  companies,  joint  stock  companies  generally, 
for  whatever  purpose  established,  and  more  particularly  rail- 
way companies,  are  armed  with  powers  of  raising  and  possessing 
large  sums  of  money, — large  amounts  of  property, — and  if  they 
were  to  apply  that  money,  or  that  property,  to  purposes  other 
than  those  for  which  they  were  constituted,  they  might  very 
much  injure  the  interests  of  the  public  in  various  ways.' 

''Illustrating  the  danger  to  the  public,  as  established  by  the 
case  before  him,  the  Vice  Chancellor  said  (p.  799)  : 

"  'Here  we  find  this  company,  having  the  traffic  from  the 
north  of  England,  where  the  great  coal  fields  are  (at  least, 
some  of  the  principal  coal  fields),  supplying  the  coimtry  with 
coal,  or  capable  of  supplying  it ;  this  company  buys  the  coal, 
which  gives  to  the  company  an  interest  in  checking  as  much  as 
possible,  those  who  will  not  deal  with  them ;  and  it  is  quite  clear 
that  it  is  possible,  by  the  mode  in  which  this  company  may  (I 
will  not  say  has) — but  by  the  mode  in  which  this  company  may 
exercise  such  powers  as  either  it  has  or  assumes  to  have — this 
company  may  get  into  their  hands  the  traffic ;  that  is,  the  dealing 
in  all  the  coal  in  the  large  districts  supplying  coal  to  the  coim- 
try. They  have,  to  a  considerable  extent,  done  so,  and  there 
is  no  reason  why  it  should  not  go  on  progressing.  I  observe 
that  in  the  eight  (?)  years  from  1852  to  1857,  inclusive,  the 
amount  of  their  coal  business  has  increased  from  73,000  tons  to 
794,000  tons ;  and  there  is  no  reason,  as  the  affidavits  show,  why 
they  should  not — there  is  great  danger  that  they  may — get  into 
their  hands  the  entire  business  in  the  coal  of  all  that  district  of 
countr3^  If  they  can  do  that  with  regard  to  coal,  what  is  to 
prevent  their  doing  it  with  regard  to  every  species  of  agricul- 
tural produce  all  along  the  line  ?    Why  should  they  not  become 


§93.]  Equ.vlity  IN  Kates.  207 

producers  of  corn,  of  all  kinds  of  beasts,  and  of  sheep,  and  every 
species  of  agricultural  produce,  and  become  great  dealers  in  the 
supply  of  edibles  to  the  markets  of  London  and  why  not  every 
other  species  of  commodity  that  is  produced  in  every  part  of 
the  country  from  which  or  to  which  their  railway  runs?  I  do 
not  know  where  it  is  to  stop,  if  the  argument  on  the  part  of  the 
company  is  to  prevail.  There  is,  therefore,  great  detriment  to  the 
interests  of  the  public,  for  this  reason,  taking  merely  the  article 
of  coal.' 

''It  is  apparent  that  the  construction  of  the  statute  which  is 
now  claimed  by  the  carriers  would,  if  adopted,  not  only  destroy 
its  entire  remedial  efficacy,  but  would  cause  the  provisions  of  the 
statute  to  accentuate  and  multiply  the  very  wrongs  which  it  was 
enacted  to  prevent. ' ' 

The  conclusion  of  the  court  was  to  direct  the  court  below  to 
issue  a  decree  "perpetually  enjoining  the  Chesapeake  &  Ohio 
from  taking  less  than  the  rates  fixed  by  its  published  tariff  of 
freight  rates,  by  means  of  dealing  in  the  purchase  and  sale  of 
coal." 

It  is  obvious  that  the  evils  pointed  out  so  forcibly  by  the  Su- 
preme Court  apply  equally  where  the  carrier  puts  the  owner- 
ship of  the  commodity  in  a  corporation  in  which  the  carrier  owns 
all  the  stock,  and  that  the  difference  is  only  in  degree  and  not  in 
kind  where  the  carrier  has  only  a  part  of  the  stock  in  the  cor- 
poration o^^Tiing  the  commodity.  Congress,  by  virtue  of  its 
plenary  power  to  regulate  interstate  commerce,  sought  to  pre- 
vent these  evils,  and  the  prohibition  was  made  to  apply  where 
the  carrier  had  an  interest,  direct  or  indirect,  in  the  commodity 
transported.  This  clause  the  circuit  court  held  unconstitutional, 
but  the  Supreme  Court,  upon  appeal,  held  the  provision  valid "' 
as  construed,  which  construction  is  as  follows : 

"We  then  construe  the  statute  as  prohibiting  a  railroad  com- 
pany engaged  in  interstate  commerce  from  transporting  in  such 
commerce  articles  or  commodities  under  the  following  circum- 
stances and  conditions:  (a)  When  the  article  or  commodity  has 
been  manufactured,  mined  or  produced  by  a  carrier  or  under  its 
authority,  and  at  the  time  of  transportation  the  carrier  has  not 
in  good  faith  before  the  act  of  transportation  dissociated  itself 


"^United  States  v.  Delaware  &  IT.  ,29   Sup.  Ct.         .     For  opinion 

Co.,  2i3  U.  S,  3G6,  415,  53  L.  Ed.      of  lower  court,  see  164  Fed.  215. 


208  Equality  IN  Kates.  f§94. 

from  such  article  or  commodity;  (b)  When  the  carrier  o^atis  the 
article  or  commodity  to  be  transported  in  whole  or  in  part;  (c) 
"When  the  carrier  at  the  time  of  transportation  has  an  interest, 
direct  or  indirect,  in  a  legal  or  equitable  sense  in  the  article  or 
commodity,  not  including,  therefore,  articles  or  commodities  man- 
ufactured, mined,  produced  or  owned,  etc.,  by  a  bona  fide  cor- 
poration in  which  the  railroad  company  is  a  stockholder." 

The  construction  of  the  law  by  the  Supreme  Court  makes  it 
easily  possible  for  carriers  to  organize  corporations  controlled 
by  themselves  and  the  evils  stated  in  the  Choscipeake  &  Ohio 
Case,  supra,  are  not  lessened.  This  is  shown  by  ]\Ir.  Justice  Har- 
lan in  his  dissenting  opinion,  as  follows: 

"In  my  judgment  the  act,  reasonably  and  properl}^  con- 
strued, according  to  its  language,  includes  within  its  prohibitions 
a  railroad  company  transporting  coal,  if,  at  the  time,  it  is  the 
owner,  legally  or  equitably,  of  stock — certainly,  if  it  owns  a 
majority  or  all  the  stock^n  the  company  which  mined,  manu- 
factured or  produced,  and  then  o'\\'ns,  the  coal  which  is  being 
transported  by  such  railroad  company.  Any  other  view  of  the 
act  will  enable  the  transporting  railroad  company,  by  one  device 
or  another,  to  defeat  altogether  the  purposes  which  Congress 
had  in  view,  which  was  to  divorce,  in  a  real,  substantial  sense, 
production  and  transportation,  and  thereby  to  prevent  the  trans- 
porting company  from  doing  injustice  to  other  owners  of  coal." 

Speaking  of  the  circuit  court  decision,  the  commission  in  its 
twenty -second  annual  report  said : 

"21ie  Commodities  Decision.  The  ruling  by  the  circuit  court 
for  the  third  circuit  that  the  commodities  clause  of  the  act  is 
unconstitutional  has  served  to  embarrass  and  delay  the  fight 
against  discrimination.  A  considerable  number  of  carriers  are 
o\^Tiers  of  and  dealers  in  commodities  carried  by  them.  Such 
carriers  succeed,  in  practically  every  case,  in  monopolizing,  or 
at  least  dominating,  the  markets  in  which  they  deal.  The  com- 
modities clause,  by  compelling  carriers  to  confine  themselves  to 
the  transportation  business,  promised  to  give  many  shippers 
freedom  from  what  has  hitherto  been  crippling  discrimination." 

§  94.  Basing  points  and  group  rates. — In  certain  territories 
the  carriers  make  a  city  a  bnsing  point.  To  illustrate:  Atlanta, 
Georgia,  is  a  basing  point.  Rates  to  to^^^ls  aroimd  Atlanta  are 
the  rate  to  Atlanta  plus  the  rate  from  Atlanta  to  the  particular 
town.    And  this  is  true  whether  Atlanta  be  the  longer  or  the 


§  94.]  Equality  in  Kates.  209 

shorter  distance  point.  This  principle  was  described  and  sus- 
tained in  the  La  Grange  Case.*^  The  subject  of  this  section  is 
also  discussed  ante  §§  60  and  61.  The  commission  does  not  look 
Avith  favor  upon  the  practice.    It  has  said :  " 

' '  As  stated  in  our  findings  of  fact,  through  rates  made  in  this 
way — that  is,  composed  of  rates  to  'basing  points'  and  local 
rates  back — are  in  pursuance  of  what  is  knoAMi  as  the  'basing 
point'  system  of  rate-making,  which,  according  to  the  evidence 
of  the  witness  (Cutler),  prevails  'throughout  the  southern  ter- 
ritory. '  This  system  has  been  heretofore  several  times  discussed 
and  disapproved  by  the  commission.  Re  Louisville  &  N.  R.  Co., 
1  I.  C.  C.  Rep.  84,  85,  1  Inters.  Com.  Rep.  278 ;  Martin  v.  Chi- 
cago, B.  &  Q.  R.  Co..  2  I.  C.  C.  Rep.  25,  46,  47,  2  Inters.  Com. 
Rep.  32;  Re  Tariffs  and  Classifications  of  A.  &.  W.  P.  R.  Co.,  3 
I.  C.  C.  Rep.  19,  24,  25,  46-49,  2  Inters.  Com.  Rep.  461. 

"Under  this  system,  where  the  haul  is  through  the  basing 
point  to  a  point  beyond,  the  rate  to  the  latter  is  the  through  rate 
to  the  basing  point  plus  the  local  rate  from  the  basing  point  on, 
and  where,  as  in  the  present  case,  the  haul  is  to  an  intermediate 
point,  the  rate  to  the  intermediate  point  is  the  rate  for  the  haul 
through  such  intermediate  point  to  the  basing  point  plus  the 
local  rate  back  over  the  same  line.  In  the  former  case,  the  haul 
is  not  treated  as  a  continuous  haul  through  the  basing  point  to 
the  point  beyond,  but  as  two  distinct  hauls ;  one  a  through  haul 
to  the  basing  point,  and  the  other  a  local  haul  from  the  basing 
point  to  the  point  beyond;  and  in  the  latter  case,  not  as  a 
through  haul  to  the  intermediate  point,  but  as  a  haul  through 
the  intermediate  point  to  the  basing  point  beyond  plus  a  local 
haul  back.  Local  hauls,  as  is  well  known,  are  much  more  ex- 
pensive to  the  carrier  per  mile  than  long  through  hauls,  or  any 
proportion  of  such  through  hauls.  Therefore  local .  rates  are 
properly  made  much  higher  for  the  same  distance  than  through 
rates,  and  hence  the  charge  of  a  local  rate  for  a  part  of  a  through 
haul,  when  the  extra  expense  of  a  local  haul  has  not  been  in- 
curred, is  prima  facie  excessive.  Augusta  Southern  R.  Co.  v. 
Wrightsville  &  T.  R.  Co.,  74  Fed.  Rep.  522. 

"It  is  a  significant  fact  that  the  result  of  this  svstem  of  rate 


"Int.   Com.    Com.   v.   Louisville   &  "'Board  of  Trade  of  ITamptou  v. 

N.  R.  Co.,  190  U.  S.  27.3,  47  L.  Ed.       Nashville,   C.   &   St.   L.  R.   Co.,  8   1. 
J 047,  23  Sup.  Ct.  687.  C.  C.  R.  503,  521. 


210  Equality  IX  Rates.  [§94. 

making  is  to  enable  the  basing  point  merchants  to  compete  with 
the  local  merchants  of  surrounding  localities  at  their  own  doors 
on  equal  terms,  while  the  latter  are  debarred  from  such  com- 
petition with  the  former,  and  as  to  territory  intermediate  be- 
tween the  basing  points  and  surrounding  localities,  merchants 
at  the  basing  points  are  given  such  an  advantage  in  rates  as  to 
enable  them  to  undersell  merchants  at  surrounding  localities, 
and  drive  them  out  of  the  'jobbing  business'  in  such  interme- 
diate territory,  as  the  testimony  shows  has  been  the  result  in 
the  present  case.  The  direct  tendency  and  almost  invariable 
outcome  of  the  system  is  that  basing  points  are  built  up  and 
flovirish  at  the  expense  of  surrounding  localities.  The  building 
up  of  one  locality  at  the  expense  of  another,  by  rates  favoring 
the  former  and  discriminating  against  the  latter,  was  undoubt- 
edly one  of  the  principal  evils  which  the  act  to  regulate  com- 
merce was  designed  to  remedy,  and  it  would  seem  that  due  al- 
lowance might  and  should  be  made  for  the  effect  of  competition 
without  defeating  the  object  of  the  law.  "What  are  termed  com- 
petitive points  may  be  given  rates  relatively,  or  even  absolutely, 
lower  than  the  rates  to  shorter  distance  points,  without  making 
the  rates  to  the  latter  the  rates  to  the  former  plus  the  extra 
local  back.  There  is  grave  reason  for  the  conclusion  that  the 
object  of  the  carriers  in  charging  as  a  part  of  the  through  rate 
the  local  between  the  basing  point  and  the  surroimding  local- 
ities is  to  accomplish  the  natural  result  of  this  system  of  rate- 
making,  and  that  competition  is  used  as  a  pretext  or  justification 
when  it  does  not  in  fact  necessitate  such  a  state  of  things." 

When  a  city  with  large  transportation  facilities  is  granted  the 
position  of  a  basing  point  the  carriers  are  but  doing  what  com- 
petition compels  as  an  alternative  of  not  getting  the  business. 
When,  however,  competition  does  not  make  necessary^  this  lower 
rate  to  a  basing  point,  the  charge  to  the  shorter  distance  point 
would  be  discriminatory.  Carriers  must  of  necessity  recognize 
market  competition,  but  it  is  illegal  for  them  to  create  a  market 
at  the  expense  of  others  with  the  same  or  similar  transportation 
conditions. 

Group  rates,  that  is  the  same  rates  to  several  contiguous  to^^ns, 
rest  upon  the  same  legal  principles  as  basing  point  rates.  These 
are  not  necessarily  illegal,  but  become  so  if  they  constitute  undue 
or  imreasonable  preference.  This  is  the  conclusion  of  the  com- 
mission.'" The  English  Railway  and  Canal  Traffic  Act  of  1888, 
§  29,''  is  as  follows : 


§  94.]  Equality  in  Rates.  211 

"(1).  Notwithstanding  any  provision  in  any  general  or  spe- 
cial act,  it  shall  be  lawful  for  any  railway  company,  for  the 
purpose  of  fixing  the  rates  to  be  charged  for  the  carriage  of  mer- 
chandise to  and  from  any  place  on  their  railway,  to  group  to- 
gether any  number  of  places  in  the  same  district,  situated  at 
various  distances  from  any  point  of  destination  or  departure 
of  merchandise,  and  to  charge  a  uniform  rate  or  imiform  rates 
or  carriage  for  merchandise  to  and  from  all  places  comprised  in 
the  group  from  and  to  any  point  of  destination  or  departure. 

"  (2).  Provided  that  the  distances  shall  not  be  unreasonable, 
and  the  group  rates  charged  and  the  places  grouped  together 
shall  not  be  such  as  to  create  an  mi  due  preference. 

"(3).  Where  any  group  rate  exists  or  is  proposed,  and  in 
any  case  where  there  is  a  doubt  whether  any  rates  charged  or 
proposed  to  be  charged  by  a  railway  company  may  not  be  a  con- 
travention of  section  two  of  the  Railway  and  Canal  Traffic  Act, 
1854,  and  any  acts  amending  the  same,  the  railway  company 
may,  upon  giving  notice  in  the  prescribed  manner,  apply  to  the 
commissioners,  and  the  commissioners  may,  after  hearing  the 
parties  interested  and  any  of  the  authorities  mentioned  in  sec- 
tion seven  of  this  act,  determine  whether  such  group  rate  or  any 
rate  charged  or  proposed  to  be  charged  as  aforesaid  does  not 
create  an  undue  preference.  Any  persons  aggrieved,  and  any 
of  the  authorities  mentioned  in  section  seven  of  this  act,  may, 
at  any  time  after  the  making  of  any  order  luader  this  section, 
apply  to  the  commissioners  to  vary  or  rescind  the  order,  and  the 
commissioners,  after  hearing  all  parties  who  are  interested,  may 
make  an  order  accordingly." 

It  has  been  held  "^  that  the  English  act  "justifies  rates  which 
are  granted  on  the  groimd  of  commercial  convenience,"  which 
woukl  not  be  justified  within  this  section. 

*'LaCrosse  M.  &  J.  Union  v.  Chi-  niington  &  W.  K.  Co.,  9  I.  C.  C.  R. 

cago,  M.  &  St.  P.  Ry.  Co.,   1  I.   C.  17;    Newland   v.    Northern    Pac.    R. 

C.  R.  629,  2  I.  C.  R.  9;  Lippman  &  Co.,   6   I.   C.   C.   R.   131,   4   I.   C.   R. 

Co.  V.   111.   Cent.  R.   Co.,   2  I.   C.   C.  474;  Detroit,  G.  H.  &  M.  Ry.  Co.  v. 

R.   584,  2   I.   C.   R.   414;    Howell  v.  Int.   Com.   Com.,  74  Fed.   80.3. 

New  York,  L.  E.  &  W.  R.  Co.,  2  I.  "  Browne  -  &     Theobald    Law     of 

C.   C.   R.   272,   2   I.   C.   R.   162;    Im-  Railways,  772. 

perial  Coal  Co.  v.  Pittsburg  &  L.  E.  ^  North    Lonsdale    Iron    &    Steel 

R.  Co.,  2  I.  C.  C.  R.  618,  2  I.  C.  R.  Co.   v.   Furriers  L.   &  N.  W.   &  M. 

4.36;  Rend  v.  Chicago  &  N.  W.  Ry.  Ry.  Co.,  7  Ry.  &  Canal  Traffic  Cas. 

Co.,  2  I.  C.  C.  R.  540,  2  L   C.  R.  ]  16,  60  L.  J.  Q.  B.  419. 
313;    Hilton    Lumber    Co.    v.    Wil- 


212  Eqialitv  TN  Rates.  [§95. 

§  95.  Rebates. — A  rebate  Avithin  the  meaning  of  the  act  to 
regulate  commerce  means  the  acceptance  by  a  common  carrier 
of  a  rate  less  than  that  provided  for  in  its  ta rill's  of  charges. 
The  most  frerpient  method  of  rebating  was  for  the  carrier  to 
exact  the  full  tariff  charge  and  afterwards  "rebate"  or  pay  to 
the  shipper  a  portion  thereof.  This  rebate  was  sometimes  af- 
fected under  the  guise  of  a  claim  for  damages  by  the  shipper. 
In  whatever  form,  whether  openly  or  by  the  most  ingenious  and 
complicated  device,  all  rebates  arc  illegal  ;ind  inuiisliahle  luider 
the  Elkins  law.  The  desire  to  obtain  e(iuality  to  shippers  and 
to  prevent  favoritism  was  probably  the  strongest  reason  for  the 
enactment  of  the  act  to  regulate  connnerce.  By  the  unjust  and 
preferential  payment  of  rebates  the  incomes  of  carriers  were  re- 
duced and  the  imfortimate  shipper  who  received  no  rebates  had 
his  business  destroyed,  while  his  more  favored  competitor  thrived. 
The  views  of  the  Supreme  Court,  through  Mr.  Justice  White, 
in  New  York,  N.  H.  &  II.  R.  Co.  v.  Interstate  Commerce  Com- 
mission, 200  U.  S.  361,  391,  50  L.  Ed.  515,  521,  26  Sup.  Ct.  Rep. 
272,  277,  are  apposite  here : 

"It  cannot  be  challenged  that  the  great  purpose  of  the  act 
to  regulate  commerce,  whilst  seeking  to  prevent  unjust  and  un- 
reasonable rates,  was  to  secure  equality  of  rates  to  all  and  to 
destroy  favoritism,  these  last  being  accomplished  by  requiring 
the  publication  of  tariffs  and  by  prohibiting  secret  departures 
from  such  tariffs,  and  forbidding  rebates,  preferences,  and  all 
other  forms  of  undue  discrimination.  To  this  extent  and  for 
these  purposes  the  statute  was  remedial,  and  is,  therefore,  en- 
titled to  teeeive  that  interpretation  which  reasonably  accom- 
plishes the  great  public  purpose  which  it  was  enacted  to  sub- 
serve. .  . .  The  all-embracing  prohibition  against  either  directly 
or  indirectly  charging  less  than  the  published  rates  shows  that 
the  purpose  of  the  statute  was  to  make  the  prohibition  applicable 
to  every  method  of  dealing  by  a  carrier  by  which  the  forbidden 
result  could  be  brought  about.  If  the  public  purpose  which 
the  statute  was  intended  to  accomplish  be  borne  in  mind,  its 
meaning  becomes,  if  possible,  clearer." 

Mr.  Justice  Day,  after  quoting  the  above  remarks  in  the 
Armour  Packing  Co.  Case,"^  said : 


«>  Armour   Packing   Co.   v.   TJnitecl       28  Sup.  Ct.  428. 
States,  209  U.  S.  56,  52  L.  Ed.  681, 


§  95.]  Equality  in  Rates.  213 

"The  Elkins  act  proceded  upon  broad  lines  and  was  evidently 
intended  to  effectuate  the  purpose  of  Congress  to  require  that 
all  shippers  should  be  treated  alike,  and  that  the  only  rate 
charged  to  any  shipper  for  the  same  service,  under  the  same 
conditions,  should  be  the  one  established,  published,  and  posted 
as  required  by  law.  It  is  not  so  much  the  particular  form  by 
which  or  the  motive  for  which  this  purpose  was  accomplished, 
but  the  intention  was  to  prohibit  any  and  all  means  that  might 
be  resorted  to  to  obtain  or  receive  concessions  and  rebates  from 
the  fixed  rates,  duly  posted  and  published." 

In  New  York  C.  &  H.  R.  R.  Co.  v.  United  States,™  it  was  con- 
tended that  the  law  could  not  impute  to  a  corporation  the  com- 
mission of  a  crime  and  that  the  conviction  of  a  corporate  com- 
mon carrier  for  rebating  was  illegal.  This  question  is  discussed 
at  length,  authorities  cited  and  this  conclusion  arrived  at : 

"We  see  no  valid  objection  in  law,  and  every  reason  in  public 
policy,  why  the  corporation  which  profits  by  the  transaction, 
and  can  only  act  through  its  agents  and  officers,  shall  be  punish- 
able by  fine  because  of  the  Imowledge  and  intent  of  its  agents 
to  whom  it  has  intrusted  authority  to  act  in  the  subject-matter 
of  making  and  fixing  rates  of  transportation,  and  whose  knowl- 
edge and  purposes  may  well  be  attributed  to  the  corporation 
for  which  the  agent  acts.  While  the  law  should  have  regard  to 
the  rights  of  all,  and  to  those  of  corporations  no  less  than  to 
those  of  individuals,  it  cannot  shut  its  eyes  to  the  fact  that  the 
great  majority  of  business  transactions  in  modem  times  are  con- 
ducted through  these  bodies,  and  particularly  that  interstate 
commerce  is  almost  entirely  in  their  hands,  and  to  give  them  im- 
munity from  all  punishment  because  of  the  old  and  exploded 
doctrine  that  a  corporation  cannot  commit  a  crime  would  vir- 
tually take  away  the  only  means  of  effectually  controlling  the 
subject-matter  and  correcting  the  abuses  aimed  at. 

"There  can  be  Ho  question  of  the  power  of  Congress  to  reg- 
ulate interstate  commerce,  to  prevent  favoritism  and  to  secure 
equal  rights  to  all  engaged  in  interstate  trade.  It  would  be  a 
distinct  step  backward  to  hold  that  Congress  cannot  control 
those  who  are  conducting  this  interstate  commerce  by  holding 
them  responsible  for  the  intent  and  purposes  of  the  agents  to 
whom  they  have  delegated  the  power  to  ;ict  in  tlic  pn>mises. " 

""212   U.   S.   481,   5.3   L.    Ed.  ,  2!)  Suj..  Ct.  .304, 


214  Equality  in  Rates.  [§  95. 

In  the  same  styled  case  "  the  Supreme  Court  held  that  the  act 
applied  to  rebates  paid  after  it  went  into  effect  though  paid 
under  a  contact  made  prior  to  its  adoption.  Each  payment  of 
a  rebate  under  a  general  contract  therefor  constitutes  a  separate 
offense,  though  not  decided  whether  or  not  each  shipment  made 
at  a  less  than  the  published  rate  constitutes  a  separate  offense."' 
The  venue  of  suits  in  prosecution  for  granting  rebates  is  in  any 
federal  district  through  which  is  had  the  transportation  on 
which  the  rebate  is  paid."^    See  also  post,  §§522  to  525. 

"When  no  joint  tariff  is  filed,  the  sum  of  the  local  rates  is  the 
valid  through  rate,  and  a  carrier  who  issues  a  through  bill  of 
lading  and  collects  less  than  such  rate  is  guilty  of  rebating."* 

"^212  U.   S.   500,  53  L.  Ed.         ,          "*  Chicago,  B.  &  Q.  E.  Co.  v.  Unit- 

29  Sup.  Ct.  309.  ed  States,   157  Fed.  830.     Affirmed. 

"=  Note '"'  supra.  209  U.  S.  90,  52  L.  Ed.  698,  28  Sup. 

"'Note*^'  supra.  Ct. 


CHAPTER  IV. 

ENFORCEMENT  BY  THE  COMMISSION  OF  THE  ACT  TO 
REGULATE  COMMERCE. 

§  150.     General  statement  of  the  functions  of  the  commission. 

151.  Appointment  and  general  duties  of  the  commission. 

152.  Power  of  the  commission  to  relieve  from  the  long  and  short  haul 

clause. 

153.  The  commission 's  duty  with  reference  to  schedules  of  rates. 

154.  Eeparation. 

155.  Reparation  to  whom  paid. 

156.  Eeparation  by  whom  paid. 

157.  Eei)aration  protest  unnecessary. 

158.  Eeparation  an  inadequate  remedy. 

159.  Eeparation,  limitation  on  complaint  for. 

160.  Commission  may  make  investigations  without  complaint. 

161.  Commission  may  ask  for  the  aid  of  courts  to  enforce  law. 

162.  Eehearings  by  the  commission. 

163.  Commission  has  power  to  prescribe  rates  for  the  future. 

164.  Commission   has   power   to   make   regulations   which   carriers   must 

obey. 

165.  Commission  may  establish  through  routes  and  joint  rates  and  pre- 

scribe the  division  of  the  joint  rate. 

166.  Procedure  before  the  commission. 

167.  Eules  of  procedure  prescribed  by  the  commission. 

168.  Forms  prescribed  by  the  commission. 

§  150.  General  statement  of  the  functions  of  the  commission. 
— In  discussing  the  scope  nncl  validity  of  the  act  to  regulate  com- 
merce infra  chapter  one,  it  was  seen  that  the  commission  was 
an  administrative  body,  with  no  judicial  power,  that  it  is  an 
agency  of  the  legislative  department  of  the  Federal  Government 
to  which  has  been  delegated  the  legislative  power  of  prescrib- 
ing rates  for  the  future.  In  the  performance  of  its  administra- 
tive duties,  it  exercises  ceriain  functions  in  the  exercise  of  which 
it  adopts  forms  and  procedure  similar  to  those  in  use  by  courts 
when  enforcing  the  judicial  powers  of  the  government.  While 
in  a  loose  way  it  is  freriuently  said  that  the  commission  exer- 
cises quasi  judicial  j)o\V('rs,  it  can  not  ])e  said  that  any  of  the 

215 


216  Enforcement  by  the  Commission  [§  151. 

judicial  powers  conferred  by  the  Constitution  of  the  United 
States  are,  or  can  be,  exercised  by  the  commission.  The  duties 
of  the  commission  under  existing  law  naturally  divide  themselves 
into  two  distinct  branches.  The  first  of  these  duties  are  purely 
administrative  in  their  nature  and  in  the  performance  of  which 
the  action  of  the  commission  is  not  absolutely  bindintz;  ui)on  any 
one,  it  is  merely  taken  as  prima  facie  evidence  of  the  truth  of 
their  reasonableness.  The  second  is  the  exercise  of  its  deletjated 
legislative  power  and  consists  of  prescribing  rules,  regulations 
and  rates  for  the  future.  Under  the  first  head.  ui)on  complaint, 
the  commission,  after  hearing,  may  decide  that  the  past  practice 
of  a  carrier  has  not  been  in  accord  with  the  law,  it  may  deter- 
mine that  by  such  practices  the  complainant  has  l)een  damaged 
in  an  amount  which  the  commission  fixes.  The  finding  e)f  the 
commission  awarding  reparation  may  or  may  not,  at  the  option 
of  the  carrier,  be  obeyed.  If  the  order  therefor  is  obeyed,  it  is 
not  that  the  carrier  can  be  compelled  to  do  so  by  any  order  of 
the  commission,  but  because  the  carrier  recognizes  its  justice  or 
fears  that  the  courts  may  do  so.  If  obedience  is  refused,  the 
commission,  or  the  parties  in  whose  favor  the  order  is  granted, 
may  ask  the  judicial  department  of  the  government  to  lend  its 
aid  to  make  effective  the  findings  of  the  connnission.  "When  the 
matter  is  brought  to  the  attention  of  the  proper  court  in  such 
a  way  as  to  invoke  its  action,  a  hearing  is  had  de  novo,  the  find- 
ings of  the  commission  being,  by  a  rule  of  evidence  prescribed 
by  the  legislative  department,  prima  facie  true.  Exercising  its 
full  and  unlimited  judicial  power,  the  court  may  give  weight  to 
the  findings  of  the  connnission  like  it  might  to  any  other  admin- 
istrative body ;  but  the  power  to  enforce  the  order  is  wholly  in 
the  courts.  Orders  of  the  commission  to  desist  are  discussed 
more  fully  post,  §  204.  In  the  second  branch  of  its  duties,  the 
commission  may  prescribe  a  rule  of  action  to  govern  carriers  in 
their  future  conduct.  AVhat  force  must  be  given  to  this  rule 
will  be  discussed  in  the  course  of  the  next  chapter. 

§  151.  Appointment  and  general  duties  of  the  commission. — 
The  Interstate  Commerce  Commission  is  composed  of  seven  mem- 
bers, whose  term  of  office  is  seven  years  each,  and  each  of  whom 
receives  an  annual  salary  of  ten  thousand  dollars.  They  are 
appointed  by  the  president  by  and  with  the  advice  and  consent 
of  the  Senate.  Not  more  than  four  of  the  commissioners  may 
be  of  the  same  political  party,  and  they  may  be  removed  by  the 


§  152.]  OF  Act  to  Regi:late  Commerce.  217 

President  for  inefficiency,  neglect  of  duty,  or  malfeasance  in  of- 
fice. They  shall  not  engage  in  any  other  business,  vocation,  or 
employment.  The  principal  office  of  the  commission  shall  be  in 
Washington,  where  its  general  sessions  shall  be  held;  but  when- 
ever the  convenience  of  the  public  or  the  parties  may  be  pro- 
moted, or  delay  or  expense  prevented  thereby,  the  commission 
may  hold  special  sessions  in  any  part  of  the  United  States.  It 
may,  by  one  or  more  of  the  commissioners,  prosecute  any  in- 
cjuiry  necessary  to  its  duties,  in  any  part  of  the  United  States, 
into  any  matter  or  cpiestion  of  fact  pertaining  to  the  business 
of  any  common  carrier  subject  to  the  provisions  of  the  act.  It 
shall  inquire  into  the  management  of  the  business  of  all  common 
carriers  subject  to  the  act,  and  is  authorized  and  recpiirecl  to 
enforce  its  provisions.  It  has  power  to  require,  by  subpoena,  the 
attendance  of  witnesses  and  the  production  of  books  and  it  may 
order  testimony  taken  by  depositions.  Every  order  of  the  com- 
mission shall  be  forthwith  served  by  mailing  to  any  one  of  the 
principal  officers  or  agents  of  the  carrier  at  his  usual  place  of 
business  a  copy  thereof;  and  the  registry  mail  receipt  shall  be 
prima  facie  evidence  of  the  receipt  of  such  order  by  the  carrier 
in  due  course  of  mail.  It  may  suspend  or  modify  its  orders  and 
grant  rehearings.  It  has  power  to  require  reports  from  carriers 
subject  to  the  act  and  to  prescribe  forms  for  accounting  by  car- 
riers. It  must  itself  make  annual  reports  to  Congress.  See  §§ 
500  et.  seq. 

§  152.  Power  of  the  commission  to  relieve  from  the  long  and 
short  haul  clause. — The  proviso  of  section  four  of  the  act  to  reg- 
ulate commerce  gave  the  commission  power  to  relieve  carriers 
from  the  requirements  of  that  section  prohibiting  a  carrier  from 
charging  or  receiving  any  greater  compensation  for  the  trans- 
portation of  passengers,  or  of  like  kind  of  property,  under  sub- 
stantially similar  circumstances  and  conditions  for  a  longer  dis- 
tance over  the  same  line,  in  the  same  direction,  than  for  a  shorter 
distance  over  the  same  line,  the  shorter  being  included  in  the 
longer.  This  proviso  was  fully  discussed  in  §  81  ante,  and  is 
annotated  in  §  511  post.  From  these  sections  it  will  be  seen 
that  any  fact  that  makes  a  difference  in  the  circumstances  and 
conditions  makes  inapplicable  the  requirement  of  the  section  and 
that  the  proviso  can  only  ai)[)ly  to  cases  of  like  kind  of  traffic 
under  substantially  similar  circumstances  and  conditions. 
Where,   according   to   the    construction    of   the   statute,    it   does 


218  Enforcement  by  the  Commission  [§  153. 

apply,  it  is  not  likely  the  eoininission  would  feel  called  upon 
to  grant  relief. 

§  153.  The  commissions  duty  with  reference  to  schedules  of 
rates. — It  is  the  duty  of  all  common  carriers  subject  to  the  act 
to  regulate  commerce  to  file  with  the  commission,  print  and 
keep  open  to  public  inspection  schedules  showing  all  the  rates, 
fares,  and  charges  for  transportation  both  on  their  own  line  and 
over  other  lines,  pipe  lines  and  water  connections  with  which 
they  have  established  a  through  route  and  joint  rate.  These 
and  other  provisions  showing  how  the  schedules  shall  be  printed 
and  what  they  shall  contain  may  be  seen  from  section  six  of  the 
act,  post  §§  513  to  519.  Changes  in  these  schedules  can  not  be 
made  without  thirty  days'  notice;  but  the  commission  may,  in 
its  discretion  and  for  good  cause  shown,  allow  changes  upon  less 
than  the  notice  herein  provided,  or  modify  the  requirements  of 
this  section  in  respect  to  publishing,  posting,  and  filing  tariffs, 
either  in  particular  instances  or  by  a  general  order  applicable 
to  special  or  peculiar  circumstances  or  conditions.  The  com- 
mission may  determine  and  prescribe  the  form  in  which  the 
schedules  required  by  this  section  to  be  kept  open  to  public  in- 
spection shall  be  prepared  and  arranged  and  may  change  the 
form  from  time  to  time  as  shall  be  found  expedient. 

Under  the  power  given  it  with  respect  to  the  schedules  of 
rates  to  be  charged  by  common  carriers  it  issues  administrative 
orders  from  time  to  time.  These  are  furnished  by  the  com- 
mission to  the  carriers,  and  others  may  obtain  them  from  the 
commission.  Those  issued  before  the  publication  of  Peirce's  ex- 
cellent Digest  of  the  Decisions  of  the  Commission  may  be  found 
in  that  book.  Tariff  circulars  15-A  and  17- A  apply  to  carriers 
other  than  express  companies,  and  Tariff  circular  16-A  applies 
to  express  companies.  Discrimination  was  one  of  the  evils  most 
complained  of  prior  to  the  act  to  regulate  commerce,  and  that 
act  ''was  intended  to  afford  an  effective  means  for  redressing 
the  wrongs  resulting  from  unjust  discrimination  and  undue  pref- 
erence. *  *  *  Indeed,  it  is  not  open  to  controversy  that  to 
provide  for  those  subjects  was  among  the  principal  purposes 
of  the  act.  ******  And  it  is  apparent  that  the 
means  by  which  these  great  purposes  were  to  be  accomplished 
was  the  placing  upon  all  carriers  the  positive  duty  to  establish 
schedules  of  reasonable  rates  which  should  have  a  uniform  ap- 
plication to  all,  and  which  should  not  be  departed  from  so  long 


§  153.]  OF  Act  to  Regulate  Commerce.  219 

as  the  established  schedule  remained  unaltered  in  the  manner 
provided  by  law.  Cincinnati,  N.  0.  &  T.  P.  R.  Co.  v.  Interstate 
Commerce  Commission,  162  U.  S.  184,  40  L.  Ed.  935,  5  Inters. 
Com.  Rep.  391,  16  Sup.  Ct.  Rep.  700,  167  U.  S.  479,  42  L.  Ed. 
243,  17  Sup.  Ct.  Rep.  896." 

The  above  quotation  is  from  the  Abilene  Case,^  in  which  it 
was  held  that  a  state  court  could  not  determine  an  interstate  rate 
to  be  unreasonable  when  such  rate  was  prescribed  in  a  legally 
tiled  schedule  and  which  rate  had  not  been  declared  unreasonable 
by  the  Interstate  Commerce  Commission.  All  facilities  fur- 
nished and  privileges  allowed  by  carriers  must  be  stated  in  the 
tariff  schedules,  and  it  is  prohibited  to  transport  freight  unless 
the  schedules  of  tariffs  are  tiled,  and  am^  facility  furnished  or 
privilege  granted  not  stated  in  such  schedule  constitutes  a  viola- 
tion of  the  act.  Where  the  tariff  shows  no  joint  through  rate, 
carriers  parties  to  a  through  bill  of  lading  must  collect  the  sum 
of  the  local  rates  shown  by  the  local  tariff's." 

"Where  an  agent  of  a  carrier  gives  a  shipper  a  rate  less  than 
that  prescribed  in  the  legally  filed  tariff,  the  shipper  must  never- 
theless pay  the  full  tariff  rate,  even  though  by  so  doing  he  may 
be  damaged ; '  and  a  rate  in  a  bill  of  lading  less  than  the  tariff 
rate  wdll  not  relieve  a  shipper  from  paying  the  tariff  rate  the 
shipment  being  interstate,  although  the  statute  of  the  state  in 
which  the  bill  of  lading  was  issued  made  it  illegal  to  collect  a 
higher  rate  than  was  on  the  bill  of  lading  specified.*  That  a 
schedule  of  rates  has  been  duly  filed  will  not  prevent  the  com- 
mission from  declaring  such  rates  unreasonable  and  awarding 
reparation  for  the  amount  charged  and  collected  in  excess  of 
what  was  a  reasonable  rate.  On  this  point  Mr.  Commissioner 
Clements  said :  ° 

"All  provisions  of  the  act  must  be  construed  in  the  light  of 
each  other  and  be  given  a  reasonable  effect.    By  the  first  section 


^  Texas  &  Pac.  Ey.  Co.  v.  Abilene  *  Gulf  C.  &  S.  F.  Ey.  Co.  v.  Hefley, 

Cotton   Oil   Co.,   204  V.    S.   426,   51  158    U.    S.    98,    39    L.    Ed.    910,    15 

L.  Ed.  55.3,  27  Sup.  Ct.  350.  Sup.  Ct.   802;    Spratlin  v.   St.   L.  & 

» United  States  v.  New  York  C.  &  S.  W.  Ey.  Co.,  76  Ark.  82,  88  S.  W. 

H.    E.    E.    Co.,    212    U.    S.    509,    53  836;    St.    L.    &    S.    W.    Ey.    Co.    v. 

L.  Ed.         ,  29  Sup.  Ct.         .  Carden,  34  S.  W.   (Tex.)    145. 

'  Texas  &  Pac.  Ey.  Co.  v.  Mugg,  "  Nicola,    Stone    &    Myers    Co.    v. 

202  U.  S.   242,  50  L.  Ed.  1011,  26  Louisville  &  N.  E.  Co.,  14  I.  C.  C. 

Sup.  Ct.  628.  E.  199,  204. 


220  Enforcement  by  tee  Commission  [§  154. 

of  the  act  every  unjust  and  unreasonable  charge  is  declared  to 
be  unlawful.  By  subsequent  provisions  the  commission  is  ex- 
pressly empowered  to  award  reparation  for  damages  or  in- 
jury resulting  from  violations  of  the  statute.  While  the  act 
requires  carriers  to  establish,  file,  and  publish  their  rates  and 
commands  their  strict  observance,  such  publication  of  rates  is 
not  conclusive  of  their  reasonableness.  So  to  hold  would  go 
far  toward  defeating  one  of  the  leading  purposes  of  the  act. 
We  regard  the  jurisdiction  and  authority  of  the  commission  in 
this  respect  as  well  settled.  It  is  the  duty  of  the  commission  in 
cases  presented  to  it  within  the  terms  of  the  statute  to  award 
reparation  for  duly  proven  damages  to  the  parties  injured  by 
the  exaction  from  them  of  unreasonable  and  unjust  charges  for 
transportation,  notwithstanding  such  charges  may  be  in  accord- 
ance with  the  published  rates." 

§  154.  Reparation. — In  addition  to  the  public  penalties  pre- 
scribed by  the  act,  a  carrier  is  liable  to  any  person  or  persons  in- 
jured by  its  violation  of  the  act  for  the  full  amount  of  damages 
sustained  in  consequence  of  such  violation,  together  with  a  rea- 
sonable counsel  or  attorney's  fee,  to  be  fixed  by  the  court  in 
every  case  of  recovery.  The  only  damages  recoverable  under 
this  act  by  application  to  the  commission  are  damages  for  a  vio- 
lation of  the  provisions  thereof,  consequently  the  commission 
has  no  jurisdiction  to  award  damages  for  breach  of  contract  by 
a  carrier.  No  reparation  can  be  awarded  by  the  courts  for 
charging  an  unreasonable  rate  where  the  rate  is  specified  in  a 
legally  filed  schedule  of  rates,  prior  to  a  determination  by  the 
commission  that  such  rate  is  unreasonable."  The  commission 
has  no  jurisdiction  to  award  damages  against  a  shipper,  nor  can 
a  carrier  set  off  a  claim  for  underehanges  or  other  damage 
against  the  claim  of  a  shipper  for  reparation.'  On  this  subject 
the  commission  has  said: 

"It  seems  obvious  that  the  commission  has  no  authority  to 
award  set-off.  The  commission  is  not  empowered  to  make  an 
order  requiring  the  complainant  to  pay  money  damages  to  a 
railroad  company ;  it  has  no  general  common  law  or  equity  juris- 

"  Texas  &  Pac.  Ey.  Co.  v.  Abilene  '  Laning-IIarris    C.    &    G.    Co.    v. 

Cotton   Oil   Co.,   204   U.   S.   426,   .51  St.  Louis  &   S.   F.  R.   Co.,  1.5  I.   C. 

L.   Ed.   553,   27   Sup.   Ct.   350;    Cle-  C.   E.   37,   38;    Falls   &   Co.   v.   Chi- 

ment  r.  Louisville  &  N.  R.  Co.,  153  cago,  Eock  1.  &  P.  Ey.  Co.,  15  I.  C. 

Fed.    979.      See    also    Post    §§    527,  C.  E.  269,  273. 
528. 


§  154.]  OF  Act  to  Regi'late  Commerce.  221 

diction,  but  ouly  such  authority  as  is  prescribed  in  the  act  to 
regulate  commerce.  Generally  speaking,  the  right  to  award  set- 
off in  an  action  at  law  is  created  by  statute  to  avoid  multiplicity 
of  suits,  but  the  right  to  make  such  award  necessarily  involves 
authority  in  the  court  to  adjudicate  the  claims  of  both  parties. 
It  is  clear  that  the  commission,  whose  authority  is  in  the  nature 
of  an  extraordinary  remedy,  is  not  authorized  to  adjudicate  the 
claim  of  a  railroad  company  against  a  shipper,  but  only  the 
claim  of  a  shipper  against  a  railroad  company  for  violation  of 
the  interstate  commerce  law.  To  award  set-off  amoimts  to  the 
same  thing  as  adjudicating  the  claim  of  the  railroad  company 
against  the  shipper,  and  entry  of  an  order  based  upon  a  set-off 
could  occur  only  after  such  adjudication.  Plainly,  if  the  com- 
mission is  without  authority  to  determine  the  rights  of  the  par- 
ties, it  is  also  poAverless  to  enter  an  order  based  upon  a  determ- 
ination of  those  rights.  Therefore  we  conclude  that  the  com- 
mission can  not  consider  the  counter  claim  of  defendant  in  dis- 
posing of  this  case.  " 

In  claims  for  reparation  a  complaint  must  be  first  filed  with 
the  commission.  This  complaint  frequently  seeks  to  have  a  par- 
ticular rate  or  practice  declared  illegal,  and  in  the  same  com- 
plaint asks  for  an  order  fixing  the  commission's  finding  as  to 
the  amount  of  damages  the  complainant  is  entitled  to  recover. 
It  is  not  proper  to  divide  up  a  complaint  by  first  asking  a  find- 
ing that  the  rate  or  practice  is  illegal,  and  thereafter,  by  sup- 
plemental complaint,  seek  reparation.*'  JMr.  Commissioner  Har- 
lan sajnng: 

"There  remains  for  consideration  the  question  of  reparation. 
After  this  case  had  been  fully  heard  and  taken  under  advise- 
ment such  a  claim  was  brought  to  our  attention  by  letter.  No 
such  claim  is  made  on  the  original  complaint,  nor  was  the  testi- 
mony on  either  side  directed  to  any  such  issue.  This  suggests 
that  it  may  be  an  opportune  occasion  to  say  that  we  are  not  dis- 
posed to  try  complaints  by  piecemeal.  Nor  is  it  i)roper,  unless 
some  reasonable  ground  for  it  be  shown  or  the  commission  itself 
has  so  ordered,  to  bring  forward  a  claiiii  for  reparation  after  a 
complaint  has  been  heard  and  taken  under  advisement.  Under 
all  the  circumstances  disclosed  upon  this  record  w(;  arc  not  in- 


*  Dallas   Freight   Bureau   v.    Gulf,       223,   228. 
0.  &  S.  F.  Ry.   Co.,  12  I.  C.  C.   R. 


222  Enforcemkxt  by  the  Commission  [§154. 

clined  at  this  time  to  entertain  a  claim  foi'  reparation  in  con- 
nection with  this  complaint  or  with  the  rates  complained  of.  It 
is  suggested,  however,  that  the  rates  now  fixed  he  put  in  effect 
at  once  hy  the  defendants." 

While  the  rule  stated  by  IMr.  Commissioner  Ilarlan,  supra,  was 
correct  in  that  case,  it  should  be  remembered  that  proof  of  re- 
paration can  not  always  be  made  on  the  original  trial.  For  il- 
lustration :  Tift  and  others,  members  of  the  Georgia  Saw  Mill 
Association,  filed  a  suit  to  have  declared  illegal  an  advance  on 
lumber.  This  advance  became  efifcctivc  June  22,  1903,  it  was  de- 
clared illegal  by  the  commission  February  7,  1905."  The  circuit 
court  sustained  the  commission  in  an  opinion  filed  June  28, 
1905."  The  Circuit  Court  of  Appeals  affirmed  the  case  Decem- 
ber 15,  1906,''  and  on  IMay  27,  1907,  the  Supreme  Court  affirmed 
the  judgment  of  the  lower  courts."  It  was,  therefore,  nearly 
four  years  after  the  illegal  advance  was  effective  before  a  ship- 
per could  definitely  know  that  the  extra  amount  he  was  paying 
was  recoverable.  While  in  the  original  case  reparation  was 
prayed,  the  proof  of  the  amount  could  only  be  made  after  the 
final  decision  of  the  Supreme  Court.  Complaints  were  filed  by 
each  shipper  for  reparation,  and  on  June  25,  1908,  certain  gen- 
eral principles  relating  to  the  right  of  recovery  were  announced 
by  the  commission,"  and  on  January  27,  1909,  a  compromise  was 
approved  by  the  commission."  For  further  history  of  this  case, 
shoM'ing  the  procedure  of  collecting  damages  under  this  act,  see 
Tift  V.  Southern  Ry.  Co.,  159  Fed.  555.  This  history  is  given 
to  show  that  reparation  can  not  always  be  proved  in  the  original 
complaint.  It  should  be  prayed  for,  how^ever,  and  then  after 
the  question  of  the  validity  of  the  rate  or  practice  is  settled, 
there  remains  only  the  question  of  fixing  the  amount  of  damages 
to  be  awarded  and  the  particular  individual  to  whom  the  award 
shall  be  made.  The  delay  incident  to  the  Tift  Case  does  not  al- 
ways occur.     In  that  case  and  its  companion  case,  the  Central 


»  Tift  V.   Southern  Ey.   Co.,   10   I.       U.  S.  428,  51  L.  Ed.  1124,  27  Sup. 

C.  C.  E.  548.  Ct.   709. 

^"Tift    V.    Southern    Ey.    Co.,  138           "Nicola,    Stone   &    Myers    Co.    v. 

Fed.  753.  Louisville  &  N.  E.  Co.,  14  I.  C.  C. 

^1  Southern   Ey.    Co.    v.    Tift,  148       E.  199. 

Fed.  1021.  ".Joice  &  Co.  v.  111.  Cent.  E.  Co., 

^  Southern    Ey.    Co.    v.    Tift,  206       15  I.  C.  C.  E.  239. 


§  155.]  OF  Act  to  Regulate  Commerce.  223 

Yellow  Pine  Asso.  v.  111.  Cent.  R.  Co./'  the  amount  of  overcharge 
held  to  be  illegal  was  more  than  three  million  dollars  and  the 
number  of  claimants  were  over  four  hundred.  Complaints  may 
be  filed  by  an  association  in  behalf  of  its  members,  who  may 
each  prove  up  the  amount  of  his  claim." 

§  155.  Reparation  to  whom  paid. — Reparation  is  paid  to  him 
who  pays  the  illegal  advance  or  exaction.  For  the  wrong  of 
being  required  to  pay  that  which  is  illegal  under  the  act,  he  who 
makes  such  payment  has  suffered  legal  damage  to  the  extent  of 
the  amount  paid  in  excess  of  what  the  law  authorized.  This  is 
true  although  the  o\\Tier  of  the  commodity  upon  which  the  illegal 
rate  has  been  paid  may  add  such  excess  to  the  price  of  the  com- 
modity. The  reason  of  this  rule  is  clearly  and  correctly  pointed 
out  by  Mr.  Commissioner  Prouty,  who  says :" 

"The  dealer  in  Wisconsin  or  at  Memphis  has  charged  sub- 
stantially the  same  price  whether  his  sales  were  in  the  east  or 
for  export  or  for  shipment  to  California,  and  this  means,  of 
course,  that  the  advance  in  the  freight  rate  has  been  added  to 
the  price  paid  by  the  consumer.  The  defendants  say  that  it 
follows  that  the  complainants  who  have  paid  this  freight  have 
not  actually  been  injured. 

"It  appeared  that  one  witness  suspended  operations  upon  the 
Pacific  coast  owing  to  the  advance  in  the  rate,  and  other  wit- 
nesses were  of  the  opinion  that  more  lumber  would  have  been 
sold  under  the  75-cent  rate.  It  is  impossible  to  say,  therefore, 
to  what  extent  these  complaints  may  have  been  actually  dam- 
aged by  the  advance  in  this  rate,  if  the  word  damage  is  to  be  in- 
terpreted and  applied  as  claimed  by  the  defendants. 

"Such  is  not,  in  our  opinion,  the  proper  meaning  of  this  term. 
These  complainants  were  shippers  of  hardwood  lumber  to  this 
destination  and  they  were  entitled  to  a  reasonable  rate  from  the 
defendants  for  the  service  of  transportation.  An  unreasonable 
rate  was  in  fact  exacted.  They  were  thereby  deprived  of  a 
legal  right  and  the  measure  of  their  damage  is  the  difference  be- 
tween the  rate  to  which  they  were  entitled  and  the  rate  which 
they  were  compelled  to  pay.  If  complainants  were  obliged  to 
follow  every  transaction  to  its  ultimate  result  and  to  trace  out 

"10  T.  C.  C.  E.  505;  111.  Cent.  R.  '"Tift  case,  supra. 

Co.    V.    Int.    Com.    Com.,    206   U.    S.  '^  Burfjess       v.      Transcontinental 

441,    51   L.    Kc1.    1128,    27    Sup.    Ct.  Freifrht  Bureau,  13  I.  C.  C.  R.  6G8, 

700.  679,  680. 


224  Enforcement  bv  the  Commission  [§  155. 

the  exact  coiniiu'rrial  effect  of  the  rrei<;ht  rate  paid,  it  woukl 
never  be  possible  to  show  damages  witli  sufficient  accuracy  to 
justify  giving  them.  Certainly  these  defendants  are  not  en- 
titled to  this  money  which  they  have  taken  from  the  comi)lain- 
ants,  and  they  ought  not  to  be  heard  to  say  that  they  should  not 
be  required  to  refund  this  amomit  because  the  complainants 
themselves  may  have  obtained  some  portion  of  this  sum  from  the 
consumer  of  the  commodity  transported." 

The  manufacturer  who  sells  his  i^roduce  f.  o.  b.  his  plant  pays 
no  freight  thereon,  though  the  value  of  his  product  may  be  af- 
fected by  the  rate  of  carriage  from  his  i)lant  to  the  market.  His 
damage,  if  any,  however,  is  not  subject  of  ascertainment.  When 
he  sells  free  on  board  ears  at  his  place  of  business,  the  title  passes 
upon  delivery  of  the  commodity  to  the  carrier.  The  purchaser 
then  owns  the  commodity  and  must  pay  the  transportation 
charges  thereon  to  whatever  place  he  may  direct  shipment. 
Should  there  be  loss  or  injury,  the  manufacturer  would  not  suf- 
fer, but  such  loss  or  injury  must  be  adjusted  between  the  owner 
and  the  carrier.  It  may  be,  as  already  stated,  that  the  higher 
rate  affects  the  selling  price  at  the  point  of  manufacture,  but 
to  what  extent  can  not  be  definitely  ascertained.  Besides,  the 
manufacturer  does  not  fix  his  selling  price  according  to  the 
final  destination  of  the  commodity.  He  frequently  does  not 
laiow  where  the  purchaser  will  send  the  goods  when  the  purchase 
is  made.  The  purchaser  may  decide  to  use  the  commodity  at  the 
point  of  manufacture,  or  ship  to  some  place  where  the  illegal  rate 
does  not  apply.  These  and  other  considerations  make  it  ap- 
parent that  the  legal  injury  is  suffered  by  the  person  who  pays 
for  the  carriage.  This  does  not  mean  the  man  who  actually 
hands  the  money  or  check  to  the  carrier.  It  means  the  one  who 
owns  the  commodity  while  in  transit  and  who  has  undertaken  to 
deliver  it  at  a  point  requiring  its  shipment  over  the  lines  of  the 
carrier  who  collects  the  unlawful  charge.  Frequently  a  manu- 
facturer will  sell  his  goods  delivered  at  a  particular  point,  but 
allow  the  consignee  to  pay  the  freight  thereto,  deducting  the 
amount  thereof  from  the  purchase  price  of  the  goods.  In  such  a 
case,  the  manufacturer  has  paid  the  freight  and  is  entitled  to 
recover  the  overcharge.  The  manufacturer  may  add  the  freight 
charges  to  the  manufacturing  cost,  the  jobber  and  the  retailer 
may  add  not  only  such  charges  but  a  profit  thereon  when  they 
sell,  and  in  the  end  the  consumer  "pays  the  freight,"  but  it 


§  156.]  OF  Act  to  REGin:.ATE  Commerce.  225 

would  be  impracticable  to  trace  an  overcharge  to  the  consumer 
who  never  could  make  proof  entitling  him  to  a  recovery.  The 
law  will  not  attempt  to  follow  these  speculations,  but  will  let 
the  carrier  repay  to  the  man,  who  pays  for  the  transportation 
of  his  property,  all  charges  above  what  such  shipper  is  legally 
boimd  to  pay.  These  arguments  are  well  stated  by  Mr.  Commis- 
sioner Clements  in  the  case  of  Nicola,  Stone  &  IMyers  v.  Louis- 
ville &  N.  R.  Co.,  14  I.  C.  C.  R.  199,  207,  208.  In  the  Tift  Case, 
pending  in  the  United  States  Circuit  Court  for  the  Southern 
District  of  Georgia,  the  standing  master  has  filed  a  report  in 
which  he  arrives  at  the  same  conclusion. 

§  156.  ReparatiQii  by  whom  paid. — AVhere  the  illegal  rate  is 
a  joint  rate  over  a  through  route  consisting  of  several  carriers, 
the  question  arises  as  to  what  carrier  or  carriers  must  pay  the 
reparation,  and  as  to  whether  the  liability  is  joint  or  several; 
that  is,  is  each  carrier  jointly  and  severally  liable  for  all  the  il- 
legal rate,  or  is  each  carrier  liable  for  only  the  proportion  of  the 
illegal  charge  received  by  it?  The  charging  of  an  illegal  rate 
is  a  tort  and  all  participants  in  such  illegal  act  are  joint  tort 
feasors,  and  as  such,  each  carrier  is  jointly  and  severally  lia- 
ble. Where,  as  was  found  to  be  a  fact  in  the  Tift  Case,  supra, 
(§  154),  an  illegal  advance  was  made  by  a  combination  of  car- 
riers by  concerted  and  concurrent  action  in  violation  of  the  Sher- 
man Anti-Trust  law,  it  would  seem  that  each  and  all  carriers  who 
participated  in  the  action  by  which  the  advance  was  made  would 
be  joint  tort  feasors  and  liable  to  any  one  who  suffered  dam- 
ages by  such  illegal  advance.  The  commission  does  not  fully 
agree  with  this  proposition,  and  in  the  Nicola,  Stone  and  IMyers 
Case,  supra,  announced  the  rule  as  follows : 

"The  complainants  contend  that  the  defendant  carriers  who 
concurred  in  establishing  the  unlawful  advance  in  the  rates 
under  consideration  are  jointly  and  severally  liable  for  all  the 
damages  resulting  therefrom,  whether  or  not  participating  in 
the  particular  rate  from  which  the  individual  overcharge  re- 
sulted. We  can  not  concur  in  so  broad  a  view  of  the  liability 
of  the  defendants.  We  do  not  think  those  carriers  who  received 
no  part  of  the  charges  and  who  did  not  participate  in  the  move- 
ment of  the  commodity  sliould  be  liable  to  refund  the  whole  or 
any  part  of  the  rate  for  1lio  movement  of  a  shipment  in  wliioli 
they  did  not  participate.  We  think  that  the  liability  is  restricted 
to  those  carriers  who  participated  in  the  transportation  of  the 


226  Enforcement  by  the  Commission  [§  157. 

lumber  via  their  respective  routes  over  wliieh  the  several  ship- 
ments moved,  and  who  shared  in  the  transportation  charges^ 
therefor,  and  that  such  carriers  are  jointly  and  severally  liable 
to  the  persons  found  to  be  entitled  to  the  refund." 

§  157.  Reparation-protest  unnecessary. — It  is  not  necessary 
that  a  rate  be  paid  under  protest  in  order  to  enable  a  shipper 
paying  it  to  recover  the  excessive  and  illegal  portion  thereof. 
This  is  true  because  the  law  requires  no  useless  thing,  and  in  no 
case  where  a  rate  is  fixed  in  the  schedules  filed  according  to 
law,  would  protest  avail  anything.  The  carrier  could  not,  if  it 
wished,  yield  to  the  protest  and  charge  less  than  the  tariff  rates. 
This  question  has  been  before  the  commission  and  has  been  de- 
cided in  harmony  with  the  principles  stated.^*  Disposing  of  the 
carrier's  contention  that  protest  was  necessary,  Mr.  Commis- 
sioner Clements  said: 

"In  the  very  nature  of  the  thing  no  protest  is  necessary 
where  an  injury  is  inflicted  by  the  commission  of  a  tort.  The 
violation  of  the  law  produces  the  injury  and  completes  the  of- 
fense, and  the  person  injured  does  not  have  to  perform  any 
conditions  to  entitle  him  to  recover  for  the  damage  sustained. 

''Again,  neither  the  carrier  nor  the  shipper  can  lawfully  de- 
part from  the  published  rate.  Both  are  charged  with  notice  of 
what  it  is,  and  are  pimishable  from  deviating  therefrom.  It 
would  be  a  vain  thing  to  protest.  The  amount  of  the  rate  is 
fixed  in  the  established  schedule,  and  a  penalty  is  imposed  for 
charging  or  receiving  'a  greater  or  less  or  different  compensa- 
tion for  such  transportation  of  passengers  or  property.'  The 
law  looks  to  the  substance  of  things  and  does  not  require  useless 
forms  or  ceremonies. 

"Whatever  may  have  been  the  rule  at  common  law,  the  act 
to  regulate  commerce  prescribed  the  duty  of  both  the  carrier 
and  shipper,  and  it  seems  to  us  that: 

the  contention  now  made,  if  adopted,  would  necessitate 
the  holding  that  a  cause  of  action  in  favor  of  a  shipper 
arose  from  the  failure  of  the  carrier  to  make  an  agree- 
ment, when,  if  the  agreement  had  been  made,  both  the 
carrier  and  the  shipper  would  have  been  guilty  of  a 
criminal  offense,  and  the  agreement  would  have  been 

"Southern  Pine  Lumber  Co.  v.  195;  Baer  Bros.  v.  Mo.  Pae.  Ky. 
Southern  Ry.   Co.,  14  I.  C.   C.  R.      Co.,  13  I.  C.  C.  R.  329. 


§  157.]  OF  Act  to  Regulate  Commerce.  227 

so  absolutely  void  as  to  be  impossible  of  enforcement. 

Texas  &  Pacific  Ry.  v.  Abilene  Cotton  Oil  Co.,  204  U.  S. 

445,  51  L.  Ed.  553,  27  Sup.  Ct.  350. 
"Moreover,  in  view  of  the  necessary  relations  between  the 
carrier  and  shipper,  the  dependence  in  modern  business  life  of 
the  latter  upon  the  former,  the  right  and  duty  of  the  carrier  in 
the  first  instance  to  fix  its  charges,  its  obligation  to  adhere  to  the 
same  until  altered  in  the  manner  prescribed  by  law,  and  its  right 
to  enforce  such  charges  by  retaining  possession  of  the  freight 
transported  or  to  demand  payment  of  the  freight  charges  as  a 
prerequisite  to  the  transportation,  the  parties  are  not  upon  an 
equal  footing — a  condition,  even  at  common  law,  necessary  to 
sustain  the  requirements  of  a  protest  and  to  negative  the  idea  of 
voluntary  payment.  It  is  also  manifest  that  to  sustain  this  con- 
tention would  be  to  open  the  way  to  the  grossest  discriminations, 
to  prevent  which  is  one  of  the  leading  purposes  of  the  act  to 
regulate  commerce. ' ' 

The  holding  of  the  commission  is  not  in  conflict  with  the  deci- 
sion of  the  courts.  It  may  be  admitted  that  ordinarily  where  a 
payment  is  voluntarily  made  it  can  not  be  recovered,  but  where 
a  payment  must  be  made  by  force  of  law  and  where  the  law 
prescribes  a  particular  method  by  which  it  may  be  determined 
whether  or  not  the  payment  is  legal,  protest  is  neither  necessary 
nor  effective.  The  case  of  Knuclsen-Ferguson  Fruit  Co.  v.  Chi- 
cago, St.  P.,  I\I.  &  0.  Ry.  Co.,""  illustrates  the  distinction  between 
charges  collected  under  the  force  of  a  tarifi;  and  charges  paid 
voluntarily.  In  that  case,  an  icing  charge  of  $45.00  was  made 
under  a  tariff  treating  icing  as  a  separate  charge  from  transpor- 
tation, the  schedules  stating  ''that  the  pviblished  charge  for 
transportation  did  not  include  the  cost  of  icing  in  transit,  but 
that  the  carrier  would  impose  an  additional  charge  for  such 
service."  Such  a  tariff  would  not  comply  with  the  present  law 
as  to  filing  tariffs,  but  it  is  apparent  that  no  icing  charges  were 
specified  in  the  tariff  and  a  payment  of  such  charges  was  not 
made  under  the  force  of  law.  Therefore,  when  ten  days  after 
having  received  his  goods,  the  shipper  voluntarily  paid  the  icing 
charges  the  court  correctly  held,  in  a  suit  brought  a  year  there- 
after, that  he  could  not  recover.  While  it  is  true  that  protest 
is  not  necessary,  a  shipper,  when  an  illegal  advance  is  made, 

>°  149  Fed.  973,  79  C.  C.  A.  483,  204  U.  S.  670,  51  L.  Ed.  672. 


228  Enfokcemext  bv  the  Commission  [§  158. 

should  not  oontinne  paying  it.  Avithont  objection  or  protest  until 
a  large  claim  has  acciumilated  against  the  carrier.  If  a  suit 
Or  complaint  is  filed  against  an  advance,  the  j)ub]ic  is,  in  a  sense, 
represented  by  the  complainants  and  might  ])ro])erly  await  the 
determination  of  the  question  of  reasonableness  of  the  rate;  but 
when  no  such  suit  is  fihul  by  any  one  and  the  advance  or  other 
illegal  charge  is  collected  without  protest,  reparation  may  be 
limited  to  that  arising  after  the  filing  of  a  complaint.'"  IMr. 
Commissioner  Prouty  says : 

"Neither  should  these  complainants  be  permitted  to  slumber 
upon  their  rights  and  to  accumulate  against  these  defendants  a 
claim  for  damages  which  may  not  represent  in  its  entirety  an 
actual  loss  to  the  complainants.  The  burden  of  an  unjust  freight 
rate  usually  rests  upon  the  consumer,  who  can  not  and  does  not 
recover.  Claims  for  reparation  should  therefore  be  promptly 
presented  and  actively  prosecuted.  We  shall  allow  the  com- 
plainants reparation  in  this  case  in  the  amount  of  the  difference 
between  the  rate  actually  paid  and  the  rate  of  75  cents,  which 
is  established  and  which  is  foiuid  to  have  been  a  reasonable  rate 
from  the  date  of  the  filling  of  this  i^etition,  but  following  the 
ease  of  Thompson  v.  Illinois  Central  R.  R.  Co.,  13  I.  C.  C.  R. 
657,  no  reparation  will  be  allowed  by  reason  of  shipments  made 
previous  to  the  date  of  the  filing  of  the  complaint." 

§  158.  Keparation  an  inadequate  remedy. — The  long  and  in- 
evitable delay  in  recovering  payments  illegally  made  to  carriers 
is  shown  in  the  history  of  the  Tift  Case,  supra,  §  154.  Because 
of  this  delay  and  the  difificulties  incident  to  proving  reparation 
claims  of  long  standing,  the  remedy  by  preliminary^  application 
to  the  commission  and  subsequent  suit  in  the  courts  for  an  il- 
legal exaction  is  no  sufficient  and  adequate  remedy  for  the  wrong 
caused  by  illegal  exactions.  This  the  commission  has  recognized 
and  stated  in  the  following  language : "' 

"While  it  is  certainly  true  that  the  remedy  by  way  of  dam- 
ages is  utterly  inadequate  and  inconsistent,  it  is  apparently  the 
remedy  prescribed  by  the  act  to  regulate  commerce  and  the  only 
remedy  which  the  shipper  has  against  the  exaction  of  an  imrea- 
sonable  interstate  rate." 


""  Burgess       v.       Transcontinental  -^  ]\If-Grew  v.  Mo.  Pac.  Ry.  Co.,  8 

Freight  Bureau,  13  I.  C.  C.  E.  668,      I.  C.  C.  E.  630. 
680. 


§159.]  OP  Act  to  Regulate  Commerce.  229 

§  159.  Reparation,  limitation  on  complaint  for. — Section  six- 
teen of  the  act  to  regulate  commerce  as  amended  by  the  Hep- 
burn law  fixed  a  limitation  on  the  right  of  action  for  reparation 
in  the  following  language :  ' '  All  complaints  for  the  recovery  of 
damages  shall  be  filed  with  the  commission  within  two  years 
from  the  time  the  cause  of  action  accrues,  and  not  after,  and  a 
petition  for  the  enforcement  of  an  order  for  the  payment  of 
money  shall  be  filed  in  the  circuit  court  within  one  year  from 
the  date  of  the  order,  and  not  after :  Provided,  That  claims  ac- 
crued prior,  to  the  passage  of  this  act  may  be  presented  within 
one  year."  See  post,  §  5-47.  Prior  to  this  amendment  there 
was  no  limitation  in  the  statute  and  the  limitation  laws  of  the 
state  in  which  a  suit  was  filed  controlled."  The  commission  hav- 
ing stat-ed :  "^  "  Viewing  together  the  Hepburn  act,  approved 
June  29,  1906,  and  the  joint  resolution  relating  thereto,  ap- 
proved on  the  succeeding  day,  it  is  our  conclusion  that  the  legis- 
lative intent  was  to  make  the  effective  date  of  this  act— the 
date  from  which  it  speaks  for  all  purposes — August  28,  1906," 
quoted  the  foregoing  provision  and  said : 

"This  provision,  as  we  understand  it,  means  that  anj^  claim, 
whether  the  cause  of  action  upon  which  it  is  based  accrued  prior 
or  subsequent  to  the  effective  date  of  the  act,  may  be  presented 
to  the  commission  within  two  3'ears  from  the  date  of  the  accrual 
thereof;  and  that  as  to  causes  of  action  that  accrued  prior  to 
August  28,  1906,  the  claim  may  be  presented  at  any  time  prior 
to  midnight  of  August  28,  1907,  although  such  cause  of  action 
may  have  accrued  more  than  two  years  prior  thereto.  The  in- 
tent of  the  proviso  is,  in  our  opinion,  to  prevent  such  a  con- 
struction of  the  preceding  part  of  this  provision  as  to  cut  off 
claims  upon  previously  accrued  causes  of  action  as  to  which  the 
two  years  had  already  run,  or  so  nearly  so  that  it  would  be  im- 
practicable for  the  claimants  to  present  their  claims  within  such 
period. 

"It  is  contended  by  the  defendants  that  even  if  our  interpre- 

^  Ratican    v.    Terminal    R.    Asso.,  ^'^  Nicola,    Stone    &    Myers    Co.    v. 

114    Fed.    666.      Contra    holding    R.  Louisville  &  N.  R.   Co.,  14  I.  C.  C. 

S.  U.  S.  §  1047  applied.     Carter  v.  R.    199,    206.      See   also    I^le,   Mor- 

New   Orleans   &   N.   E.   R.   Co.,   143  gan  &  Co.  v.  Dcepwater  Ry.  Co.,  15 

Fed.    99,    74    C.    C.    A.    29.3 ;    Cattle  T.  C.  C.  R.  23.5 ;  Nollenberger  v.  Mo. 

Raisers'   Asso.   v.   Chicago,  B.  &  Q.  Pac.  Ry.  Co.,  1.'5  T.  C.  C.  R.  595. 
R.  Co.,  10  I.  C.  C.  R.  83. 


230  Enforcement  by  the  Commission  [§  159. 

tation  of  the  act — that  it  became  effective  for  all  purposes  on 
August  28,  and  not  on  the  date  of  its  approval — is  correct,  the 
limitations  therein  provided  for  are  nevertheless  effective  as  of 
June  29,  1906,  because  the  act  refers  in  this  connection  to  the 
'passage  of  this  act.' 

''It  is  held  in  many  cases  that  a  statute  passed  to  take  effect 
at  a  future  date  must  be  understood  as  speaking  from  the  time 
it  goes  into  operation  and  not  from  the  time  of  its  passage. 
The  words  'heretofore,'  'hereafter,'  and  the  like  have  reference 
to  the  time  the  statute  becomes  effective  as  a  law  and  not  to  the 
time  of  passage.  Before  that  time  no  rights  may  be  acquired 
under  it,  and  no  one  is  bound  to  regulate  his  conduct  according 
to  its  terms.  It  is  equivalent  to  a  legislative  declaration  th;it  the 
statute  shall  have  no  effect  until  the  designated  date. ' '  • 

Prior  to  this  decision  the  majority  of  the  commission  had 
made  an  administrative  ruling  as  follows : 

"1.  A  cause  of  action  accrues,  as  that  phrase  is  used  in  the 
act,  on  the  date  on  which  the  freight  charges  are  actually  paid. 
The  expense  bill,  and  not  the  waybill,  is  therefore  the  important 
document  in  considering  reparation  claims. 

"2.  Claims  filed  since  August  27,  1907,  nuist  have  accrued 
within  two  years  immediately  prior  to  the  date  upon  which  they 
are  filed ;  otherwise  they  are  barred  by  the  statute.  Claims  filed 
with  the  conunission  on  or  before  August  28,  1907,  are  not  ef- 
fected by  the  two  years'  limitation  in  the  act.  The  commission 
will  not  take  jurisdiction  of  or  recognize  its  jurisdiction  over  any 
claim  for  reparation  or  damages  which  is  barred  by  the  statute 
of  limitations,  as  herein  interpreted." 

In  the  case  of  Kile  &  INIorgan  v.  Deepwater  Ey.  Co.,  15  I.  C. 
C.  R.  235,  the  commission  said: 

"Under  the  commission's  interpretation  of  the  statute  all 
claims,  whether  arising  prior  or  subsequent  to  August  28,  1906, 
thfe  effective  date  of  the  act,  are  entitled  to  two  years  for  presen- 
tation to  the  commission,  the  one-year  proviso  applying  only 
to  claims  that  accrued  more  than  two  years  prior  to  that  date. 
The  petition  in  this  proceeding  having  been  filed  with  the  com- 
mission June  23,  1908,  we  think  there  exists  no  question  of  jur- 
isdiction." 

The  commission's  construction  of  the  act  would  allow  a  com- 
plaint to  be  filed  on  any  claim  within  two  years  after  it  ac- 
crued and  no  limitation  would  apply  on  claims  filed  prior  to 


§  159.]  OF  Act  to  Eegulate  Commerce.  231 

August  28,  1907.  This  construction  would  seem  to  be  correct, 
though  it  has  been  criticised.'*  The  commission,  discussing  this 
section  and  speaking  through  Mr.  Commissioner  Cockrell,  says : '' 

"In  complaints  for  the  recovery  of  damages  caused  by  charges 
of  rates  unjust  or  unreasonable  or  unjustly  discriminatory  or 
unduly  preferential  or  prejudicial,  the  cause  of  action  accrues 
when  the  payment  is  made.  In  any  other  complaints  for  the  re- 
covery of  damages  for  alleged  violations  of  the  interstate  com- 
merce laws  of  which  this  conmiission  has  jurisdiction,  the  cause 
of  action  accrues  when  the  carrier  does  the  unlawful  act  or  fails 
to  do  what  the  law  requires,  on  accoimt  of  which  damages  are 
claimed." 

A  complaint  filed  by  an  association  demanding  reparation 
under  general  averments  which  do  not  name  the  members  on 
whose  behalf  it  is  filed  and  do  not  with  reasonable  particularity 
specify  and  describe  the  shipments  as  to  which  the  complaint  is 
made,  will  not  operate  to  stop  the  running  of  the  period  of  lim- 
itation fixed  by  law.  In  the  case '"  in  which  this  statement  was 
made  it  appeared  that  the  secretary  of  an  association  had  filed 
a  complaint  in  the  name  of  the  association,  the  members  of  which 
were  not  named,  nor  was  there  given  any  data  as  to  the  ship- 
ments upon  which  reparation  might  be  claimed.  Upon  all  re- 
coveries the  association  was  to  receive  fifty  per  cent.,  four-fifths 
of  which  went  to  its  secretary.  Upon  this  state  of  facts  Mr. 
Commissioner  Harlan  said : 

"In  applying  to  complaints  filed  before  it  the  limitation  thus 
enacted  into  the  act  to  regulate  commerce,  no  reason  is  per- 
ceived why  the  commission  should  not  be  guided  by  the  general 
principles  under  which  statutes  of  limitations  are  applied  to  ac- 
tions brought  in  courts  of  justice.  And  the  universal  rule  in  the 
courts  seems  to  be  that,  under  a  system  of  pleading  which  per- 
mits a  proceeding  for  damages  to  be  instituted  by  the  filing  of 
a  complaint,  the  statute  of  limitations  does  not  cease  to  run 
against  the  demand  until  a  complaint  has  been  filed  setting  up 
the  claim  with  sufficient  particularity  to  make  an  issue;  in 
other  words,  until  a  definite  cause  of  action  has  been  pleaded 
there  is  nothing  to  arrest  tlie  ruiniing  of  the  statute.     There  are, 


^Nelson,  Tiit.  Com.  98,  99.  -"Missouri  &  Kan.  Rliij)|)ors  Asso. 

"  Re  When  a  Cause  of  Action  Ac-       v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  i:\ 
crues,  15  I.  C.  C.  R.  201,  204.  I.  C.  C.  R.  411. 


232  Enforcement  by  the  Commission  [§160. 

moreover,  special  reasons,  under  various  sections  of  the  amended 
act,  for  holding  that  none  of  these  complaints,  as  drawn,  can 
be  said  to  set  np  a  canse  for  action  or  to  be  sufficient  to  stop  the 
running  of  the  statute  against  the  claims  of  the  individual  mem- 
bers of  the  complainant  association.  Conceding  under  the  terms 
of  section  13  tliat  a  volimtary  association  may  attack  an  exist- 
ing rate  on  behalf  of  its  members,  it  may  be  said,  on  general 
grounds  of  convenience,  tliat  such  an  association  may  also  ask 
for  reparation  on  previous  shipments  made  by  them  under  the 
rate  attacked.  But  it  is  clear  that  no  demand  for  damages  by 
such  an  association  should  be  entertained,  now  that  a  period  of 
limitation  has  been  incorporated  in  the  act.  or  can  be  said  to 
state  the  complaint  or  cause  of  action  so  as  to  stop  the  running 
of  the  limitation,  that  does  not  definitely  name  the  member  or 
members  on  whose  behalf  the  claim  for  reparation  is  made.  It 
is  under  the  authority  of  section  16  that  the  commission  is  au- 
thorized to  enter  an  order  making  an  award  of  damages.  This 
section  gives  to  the  commission  the  pow'er,  after  a  full  hearing 
upon  a  complaint  made  and  when  it  shall  have  determined  'that 
any  party  complainant  is  entitled  to  an  award  of  damages,'  to 
make  an  order  directing  the  carrier  'to  pay  to  the  complainant' 
the  sum  awarded.  In  any  such  proceeding  there  must  therefore 
be  a  party  complainant  wdio  is  entitled  to  damages,  and  the 
order  must  direct  the  carrier  to  pay  the  sum  awarded  'to  the 
complainant.'  It  is  clear,  then,  that  any  complaint  under  which 
an  award  of  damages  is  sought  by  a  voluntarj^  association  of  this 
kind,  which  can  make  no  claim  on  its  own  behalf,  must  be  filed 
on  behalf  of  a  definitely  named  party  in  interest." 

"When,  however,  an  individual  files  a  complaint  for  reparation 
in  his  own  behalf,  an  informal  complaint  wall  stop  the  running 
of  the  statute." 

§  160.  Commission  may  make  investigations  without  com- 
plaint.— The  Interstate  Commerce  Commission  is  authorized  and 
empowered  to  enforce  the  provisions  of  the  act  to  regulate  com- 
merce.    To  accomplish  which  it  has  authority  to  incpiire  into 

2'Folmer  &   Co.   v.   Great   N.   Ey.  Ey.    Co.,    id.     274,    276;     Hartman 

Co.,  15  I.  C.  C.  E.  33,  34;  Venus  v.  Furniture    &     Carpet    Co.    v.    Wis. 

St.   Louis,   I.   M.   &   S.   Ey.    Co.,  id.  Cent.  Ey.  Co.,  id.  530,  .531;   Duluth 

136,  137;  Woodward  &  D.  v.  Louis-  Log   Co.   v.    Minn.    &   Int.    Ey.   Co., 

ville  &  N.  E.  Co.,  id.  170;  Beekman  id.  627. 
Lumber  Co.  v.  St.  Louis,  I.  M.  &  S. 


§  160.]  OF  Act  to  Regitlate  Commerce.  233 

the  management  of  the  business -of  all  common  carriers  subject 
to  the  provisions  of  this  act,  and  shall  keep  itself  informed  as 
to  the  manner  and  method  in  which  the  same  is  conducted,  and 
shall  have  the  right  to  obtain  from  such  common  carriers  full 
and  complete  information  necessary  to  enable  the  commission  to 
perform  the  duties  and  carry  out  the  objects  for  which  it  was 
created,  and  it  may  institute  any  inquiry  on  its  own  motion  in 
the  same  manner  and  to  the  same  effect  as  though  complaint  had 
been  made.  It  also  has  "power  to  require,  by  subpoena,  the 
attendance  and  testimony  of  witnesses  and  the  production  of  all 
books,  papers,  tariffs,  contracts,  agreements,  and  documents  re- 
lating to  any  matter  under  investigation.  Such  attendance  of 
witnesses,  and  the  production  of  such  documentary  evidence, 
may  be  required  from  any  place  in  the  United  States,  at  any 
designated  place  of  hearing.  And  in  case  of  disobedience  to  a 
subpoena  the  commission,  or  any  party  to  a  proceeding  before  the 
commission,  may  invoke  the  aid  of  any  court  of  the  United 
States  in  requiring  the  attendance  and  testimony  of  witnesses 
and  the  production  of  books,  papers,  and  documents  under  the 
provisions  of  this  section."  See  annotations  to  sections  twelve 
and  thirteen  of  the  act  to  regulate  commerce,  post,  §§  533  lo 
538. 

In  the  Brimson  Case,"*  an  informal  complaint  having  been 
made  of  the  facilities  of  certain  carriers,  the  commission  of  its 
own  motion  decided  to  investigate  the  matters  set  forth  in  such 
complaint;  and  thereupon  it  made  an  order  reciting  the  facts  of 
the  informal  complaint  and  requiring  each  of  certain  named  car- 
riers "to  make  and  file,  in  its  office  at  Washington,  a  full,  com- 
plete, perfect  and  specific  verified  answer  setting  forth  all  facts 
in  regard  to  the  matters  complained  of  and  responding  to"  cer- 
tain questions  relating  to  the  methods  of  operation  of  the  car- 
riers and  especially  as  to  the  relation  of  such  carriers  to  the 
Illinois  Steel  Company.  To  these  questions  each  carrier  filed 
a  denial  and  each  averred  that  it  had,  in  all  respects,  complied 
with  the  obligations  imposed  by  the  laws  of  the  United  States. 
Notwithstanding  these  denials,  the  conniiission  continued  the  in- 
vestigation by  the  examination  of  witnesses  and  books  and  docu- 
ments.    It  subpo'naed  W.  G.  Brimson,  who  was  president  and 


"  Int.  Com.  Com.  v.  Brimson,  1.54       Ct.   1125. 
U.  S.  447,  38  L.  Ed.  1047,  14  Sup. 


234  Enforcement  by  the  Commission  [§  160. 

manager  of  five  carriers  incorporated  under  the  laws  of  Illinois, 
which  carriers  were  among  those  under  investigation.  This  wit- 
ness refused  to  answer  the  question  as  to  the  ownership  of  his 
companies  by  the  Illinois  Steel  Company.  Other  witnesses  re- 
fused to  answer  the  same  question.  The  connnission  thereupon 
filed  its  petition  in  the  circuit  court  praying  that  the  witnesses 
be  required  to  answer  the  questions.  The  circuit  court  refused 
the  order,  holding  that  the  proceeding  did  not  constitute  a  con- 
troversy to  which  the  judicial  power  of  the  United  States  could 
be  extended.  Section  twelve  of  the  act  was-  held  valid  in  the 
Supreme  Court,  the  circuit  court  reversed  and  the  cause  re- 
manded, with  directions  to  proceed  in  conformity  with  the  opin- 
ion of  the  Supreme  Court.  The  very  able  opinion  of  jNIr.  Justice 
Harlan  concluded  as  follows : 

''We  are  of  the  opinion  that  a  judgment  of  the  circuit  court 
of  the  United  States  determining  the  issues  presented  by  the 
petition  of  the  Interstate  Commerce  Commission  and  by  the  an- 
swers of  appellees,  will  be  a  legitimate  exertion  of  judicial  au- 
thority in  a  case  or  controversy  to  which,  by  the  commission,  the 
judicial  power  of  the  United  States  extends.  And  a  final  order 
by  that  court  dismissing  the  petition  of  the  commission,  or  re- 
quiring the  appellees  to  answer  the  questions  propounded  to 
them,  and  to  produce  the  books,  papers,  etc.,  called  for,  will  be 
a  determination  of  questions  upon  which  a  court  of  the  United 
States  is  capable  of  acting  and  which  may  be  enforced  by  judi- 
cial process." 

In  the  Baird  Case,^  which  was  also  an  application  of  the  com- 
mission to  the  court  to  compel  the  testimony  of  witnesses,  the 
defendant  urged  that  though  a  complaint  was  filed,  the  com- 
plainant "did  not  show  any  real  interest  in  the  case  brought." 
The  witnesses  w^ere  required  to  answer,  Mr.  Justice  Day,  in  the 
course  of  the  opinion,  saying : 

"Power  is  conferred  upon  the  commission',  under  section  12  of 
the  act  as  amended  March  2,  1889  (25  Stat,  at  L.  858,  chap. 
382,  U.  S.  Comp.  Stat.  3901,  p.  3162,  and  February  10,  1891, 
26  Stat,  at  L.  743,  chap.  128,  U.  S.  Comp.  Stat.  1901,  p.  3162), 
to  inquire  into  the  management  of  the  business  of  all  common 
carriers  subject  to  the  provisions  of  the  act,  and  to  keep  itself 


=»  Int.  Com.  Com.  v.  Baird,  194  U.       Ct.  563. 
S.  25,  48  L.  Ed.  860,  867,  24  Sup. 


§  160,]  OF  Act  to  Regulate  Commerce.  235 

informed  as  to  the  manner  and  method  in  which  the  same  is 
conducted,  with  the  right  to  obtain  from  such  common  car- 
riers full  and  complete  information  necessary  to  enable  the  com- 
mission to  perform  the  duties  and  carry  out  the  objects  for 
which  it  was  created.         «=****** 

''But  in  the  present  case,  whatever  may  be  the  right  of  the 
commission  to  carry  on  an  investigation  under  the  general 
powers  conferred  in  section  12,  this  proceeding  was  under  the 
complaint  filed,  and  we  will  examine  the  testimony  offered  with 
a  view  to  its  competency  under  the  allegations  made  by  the 
complainant." 

In  the  Harriman  Case,  ^°  the  investigation  was  upon  the  mo- 
tion of  the  commission,  not  upon  complaint.  The  relations  be- 
tween the  Union  Pacific  Railroad  Company  and  other  connecting 
roads,  whether  parallel  or  not,  were  inquired  about  and  cer- 
tain ciuestions  asked  were,  under  advice  of  counsel,  not  an- 
swered by  the  witnesses.  The  legal  questions  presented  are 
stated  by  ]\Ir.  Justice  Holmes  as  follows : 

"The  contention  of  the  commission  is  that  it  may  make  any 
investigation  that  it  deems  proper,  not  merely  to  discover  any 
facts  tending  to  defeat  the  purposes  of  the  act  of  February  4, 
1887,  but  to  aid  it  in  recommending  any  additional  legislation 
relating  to  the  regulation  of  commerce  that  it  may  conceive  to 
be  within  the  power  of  Congress  to  enact ;  and  that  in  such  an 
investigation  it  has  power,  with  the  aid  of  the  courts,  to  require 
any  witness  to  answer  any  question  that  may  have  a  bearing 
upon  any  part  of  what  it  has  in  mind.  The  contention  neces- 
sarily takes  this  extreme  form,  because  this  was  a  general  in- 
quiry started  by  the  commission  of  its  own  motion,  not  an  in- 
vestigation upon  complaint,  or  of  some  specific  matter  that 
might  be  made  the  object  of  a  complaint.         *         *         *         * 

"The  commission  it  will  be  seen  is  given  power  to  require  the 
testimony  of  witnesses  'for  the  purposes  of  this  act.'  The  ar- 
gument for  the  commission  is  that  the  purposes  of  the  act  em- 
brace all  the.  duties  that  the  act  imposes  and  the  powers  that 
it  gives  the  commission  ;  lluit  one  of  the  purposes  is  that  the 
commission  shall  keep  itself  informed  as  to  the  manner  and 
method  in  which  the  business  of  the  carriers  is  conducted,  as 


•'"' irarrinian    v.     Int.     Com.     Com.,  ,  29  Sup.  Ct.  115. 

21i  U.  S.  407,  419,  420,  53  L.  Ed. 


236  Enforcement  by  the  Commission  [§1C0. 

required  by  section  12 ;  that  another  is  that  it  shall  recommend 
additional  legislation  under  section  21,  *  *  *  *  *  *  * 
and  that  for  either  of  these  general  objects  it  may  call  on  the 
courts  to  require  any  one  -whom  it  may  point  out  to  attend  and 
testify  if  he  would  avoid  the  penalties  for  contemi)t."' 

The  gist  of  the  opinion  is  contained  in  a  short  paragraph, 
which  is  here  reproduced : 

"We  aj"e  of  opinion  on  the  contrary  that  the  purposes  of 
the  act  for  which  the  commission  may  exact  evidence  embrace 
only  complaints  for  violation  of  the  act,  and  investigations  by  the 
connnission  upon  matters  that  might  have  been  made  tha  ob- 
ject of  complaint.  As  we  have  already  implied  the  main  pur- 
pose of  the  act  was  to  regulate  the  interstate  business  of  car- 
riers, and  the  secondary  purpose,  that  for  which  the  commission 
was  established,  was  to  enforce  the  regulations  enacted.  These 
in  our  opinion  are  the  purposes  referred  to ;  in  other  words  the 
power  to  require  testimony  is  limited,  as  it  usually  is  in  Eng- 
lish-speaking countries  at  least,  to  the  only  cases  where  the 
sacrifice  of  privacy  is  necessary — those  where  the  investigations 
concern  a  specific  breach  of  the  law." 

It  will  be  noticed  that  the  opinion  does  not  go  to  the  extent 
of  holding  that  the  commission  may  not  require  the  attendance 
and  testimony  of  witnesses  in  investigations  had  upon  its  own 
motion  without  complaint.  The  commission  may  upon  its  own 
motion  make  investigations,  but  it  can  not  require  witnesses  to 
answer  except  about  "matters  that  might  have  been  made  the 
object  of  complaint."  The  commission  in  its  twenty-second  an- 
nual report  (1908).  discusses  the  Harriman  case,  concluding  the 
discussion  as  follows: 

"This  commission,  in  administering  this  power  of  investiga- 
tion, which  it  has  assumed,to  exercise  in  the  past,  has  repeatedly 
held  that  the  private  dealings  of  individuals  in  private  matters 
could  not  be  inquired  into.  It  has.  however,  ruled  that  it  might 
inquire  to  the  fullest  extent  into  the  operations  of  railroads  and 
the  officers  of  railroads.  The  Union  Pacific  Kailroad  is  not  a 
private  enterprise — it  is  a  public  servant,  discharging,  as  the 
agent  of  the  government,  a  public  function.  Its  stocks  are 
worthless  except  as  they  derive  value  from  the  charges  which 
are  imposed  upon  the  public  for  the  rendering  of  this  public 
service.  In  the  opinion  of  this  commission,  when  ^Mr.  Harriman 
assumes  control  of  the  Union  Pacific  Railroad  he  ceases  to  be  a 


§  161.]  OF  Act  to  Regulate  Commerce.  237 

private  individual  to  that  extent  and  can  no  longer  claim  pro- 
tection, which,  as  a  private  person  engaged  in  a  strictly  private 
pursuit,  he  might  insist  upon.  It  was  our  opinion  that  he  might 
properly  be  required  to  state  whether,  as  a  director  of  the 
Union  Pacific  Railroad,  he  had  bought  from  himself  individually 
certain  stocks,  and  if  so.  that  he  should  further  be  required  to 
state  what  profit  he  had  individually  made  out  of  this  transac- 
tion. If  he  is  allowed  to  accumulate  from  the  manipulation  of 
these  public  agencies  vast  sums  of  mpney  which  must  finally 
come  from  the  body  of  the  people,  we  think  he  is  so  far  a  trustee 
of  the  people  that  he  can  not  object  to  stating  the  manner  in 
which  these  accumulations  have  been  made. ' ' 

§  161.  Commission  may  ask  the  aid  of  courts  to  enforce  the 
law. — We  have  seen  §  160  ante,  that  the  commission  may  apply 
to  courts  to  aid  it  in  obtaining  testimony  in  investigations  re- 
lating to  violations  of  the  act  to  regulate  commerce.  Upon  the 
request  of  the  commission,  it  shall  be  the  duty  of  any  district 
attorney  of  the  United  States  to  whom  the  commission  may  apply 
to  institute  in  the  proper  coiu't  and  to  prosecute  imder  the  di- 
rection of  the  Attorney-General  of  the  United  States  all  neces- 
sary proceedings  for  the  enforcement  of  the  provisions  of  this 
act  and  for  the  punishment  of  all  violations  thereof.  Where 
the  commission's  order,  other  than  an  order  for  the  payment  of 
money,  has  not  been  obeyed,  any  party  injured  by  such  diso- 
bedience, or  the  commission  in  its  own  name,  may  apply  to  the 
circuit  court  in  the  district  where  such  carrier  has  its  principal 
operating  office, 'or  in  which  the  violation  or  disobedience  of  such 
order  shall  happen,  for  an  enforcement  of  such  order. 

The  commission  has  power,  with  the  consent  of  the  Attorney- 
General,  to  employ  special  counsel.  It  is  the  usual  practice  of 
the  commission,  where  a  suit  is  brought  to  set  aside  its  order, 
to  designate  the  counsel  for  the  party  in  whose  favor  the  order 
was  entered  as  special  counsel.  Such  special  counsel  is  paid  by 
the  party  interested,  and  not  by  the  government,  and  the  method 
of  conducting  the  case  is  under  the  directions  of  the  Attorney- 
General,  or  such  regular  attorney  of  the  commission  as  mny 
have  particular  charge  thereof. 

§  162.  Rehearings  by  the  commission. — The  commission  has 
authority  to  suspend  or  modify  its  oi-dors  upon  notice,  the  man- 
nfr  of  actiiifi'  and  Hie  Isiiid  of  notice  being  left  to  its  discretion. 
Secti(jn    16-a  gives  the  commission    i>o\ver  to  grant  rehcarings 


238  Enforcement  by  ttte  Commission  [§162. 

upon  such  general  rules  as  it  may  prescribe,  but  unless  specially 
permitted  otherwise,  the  order  must  be  obeyed  pending  such  re- 
hearing. This  section  was  added  by  the  amendment  of  June 
29,  1906,  but  the  power  has  been  exercised  by  the  commission 
since  its  organization.    See  post  §  559. 

In  re  Petition  of  Produce  Exchange,*"  a  rehearing  was  denied 
the  petitioner,  who  was  not  a  party  on  the  original  hearing.  In 
]\Iyers  v.  Penn.  Co.,'°  the  rehearing  was  denied,  the  petition  not 
shoAving  any  material  testimony  had  been  overlooked  or  misap- 
prehended and  no  error  of  law  being  disclosed.  In  overruling 
the  first  motion  for  rehearing  filed  with  the  commission,  Judge 
Cooley,  its  then  chairman,  announced  this  rule  in  relation 
thereto :  ^ 

"(a)  The  commission  will  promptly  and  carefully  examine 
an  application  for  a  rehearing  with  a  view  to  the  immediate 
correction  of  any  error  of  law  or  fact  found  to  exist,  but  will 
not  direct  a  rehearing  involving  the  expense  to  parties  of  ap- 
pearing before  the  commission  for  a  reargument,  unless  satis- 
fied that  such  reargument  might  have  the  effect  of  changing  the 
result  of  what  the  commission  has  already  done. 

''(b)  The  statute  is  construed  as  dealing  with  the  substance 
of  things,  and  as  contemplating,  as  far  as  that  is  possible,  meth- 
ods of  procedure  that  are  speedy  and  which  come  at  once  to  the 
very  right  of  questions  arising  in  the  transportation  of  persons 
and  freight." 

On  a  petition  asking  a  rehearing  in  a  case  decided  before  the 
Hepburn  amendment,  so  that  an  order  could  be  made  under 
section  15,  as  amended,  ]Mr.  Commissioner  Prouty  said :  ^ 

"Without  inquiring  what  authority  as  a  matter  of  law  this 
commission  may  have  over  a  case  in  which  an  order  was  issued 
before  the  amendment  of  June  29.  1906,  took  effect,  we  are  all 
agreed  that  this  petition  ought  to  be  denied.  This  case  has  been 
ended  by  the  making  of  an  order.  For  nearly  a  year  it  was  op- 
tional with  the  complainant  to  proceed  in  court  with  the  enforce- 
ment of  that  order,  and  such  may  be  its  right  even  now.  We 
feel  that  when  an  order  has  been  made  the  case  before  this  com- 
mission should  be  treated  as  closed,  and  that  it  ought  not  to  be 

=«  2  I.  C.  C.  E.  588,  2  I.  C.  R.  412.  E.  R.  Co.,  1  I.  C.  C.  R.  490,  1  I.  C. 

«=  2  I.  C.  C.  R.  573,  2  I.  C.  R.  403,  R.  773. 

544.  *•  Cattle  Raisers '  Asso.  v.  Chicago, 

3«  Riddle,  Dean  &  Co.  v.  P.  &.  L.  B.  &  Q.  R.  Co.,  12  I.  C.  C.  R.  6. 


§  163.]  OF  Act  to  Regulate  Commerce.  239 

opened  except  upon  a  showing  that  some  wrong  or  injustice  has 
been  or  will  be  affected.     The  petition  is  denied." 

§  163.  Commission  has  power  to  prescribe  rates  for  the  fu- 
ture.— When  the  act  to  regulate  commerce  was  originally  passed 
the  commission  appointed  thereunder,  believing  the  law  so  au- 
thorized, exercised  the  power  to  prescribe  rates  for  the  future. 
That  this  power  was  not  delegated  to  the  commission  prior  to 
the  Hepburn  amendment  was  definitely  decided  by  the  Supreme 
Court  in  Interstate  Commerce  Commission  v.  Cincinnati,  N.  0. 
&  T.  P.  R.  Co.,""  where  the  question  was  elaborately  discussed 
and  the  conclusion  stated  "that  under  the  interstate  commerce 
act  the  commission  has  no  power  to  prescribe  the  tariff  of  rates 
which  shall  control  in  the  future."  Under  the  old  law  the  com- 
mission had  and  exercised  the  power  to  declare  a  particular  ad- 
vance in  rates  illegal.  The  exercise  of  this  power  practically 
meant  prescribing  the  old  rate  as  the  rate  for  the  future.  This 
is  clearly  shown  in  the  Tift  Case.  There  an  advance  was  made 
by  the  carriers,  this  advance,  on  hearing,  was  declared  illegal, 
and  the  whole  advance  was  held  to  be  the  measure  of  repara- 
tion allowed  shippers.'"  The  act  as  amended  June  29,  1906, 
section  15  (see  post  §  539)  gives  the  commission  power,  after 
full  hearing  upon  complaint,  to  determine  and  prescribe  what 
will  be  the  just  and  reasonable  rate  or  rates,  charge  or  charges, 
to  be  thereafter  observed  in  such  case  as  the  maximum  to  be 
charged. 

§  164.  Commission  has  power  to  make  regulations  which  car- 
riers must  obey. — In  the  original  act  to  regulate  commerce  trans- 
portation was  defined  as  including  "all  instrumentalities  of  ship- 
ment or  carriage."  This  definition  was  broadened  by  the  Hep- 
burn amendment  to  include  cars  and  other  vehicles  and  all  in- 
strumentalities and  facilities  of  shipment  or  carriage,  irrespec- 
tive of  ownership  or  of  any  contract,  express  or  implied,  for  the 
use  thereof  and  all  services  in  connection  with  the  receipt,  de- 
livery, elevation,  and  transfer  in  transit,  ventilation,  refrigera- 
tion or  icing,  storage,  and  handling  of  property  transported." 
Section   fifteen   of  the   act   as   amended   gives   the   commission 

»'167   U.   S.   479,   42   L.   Ed.   24.3,  v.   Southern  Ry.  Co.,  14  I.  C.   C.  E. 

17  Sup.  Ct.  89.  195;    Nicola,   Stone  &  Myers  Co.   v. 

="  Southern    Ry.    Co.   v.    Tift,   206  Louisville  &  N.  E.  Co.,  14  I.  C.  C. 

U.  S.  428,  51  L.  Ed.  1124,  27  Sup.  R.  199. 
Ct,  709;  Southern  Pine  Lumber  Co. 


240  Enforcement  bv  the  Commission  [§  16-4. 

power,  after  full  hearing  on  complaint,  to  prescribe  "what  reg- 
ulation or  practice  in  respect  to  such  transportation  is  just,  fair, 
and  reasonable  to  be  thereafter  followed."  Construing  this  sec- 
tion, the  commission,  ]\Ir.  Commissioner  ITarlan  delivering  the 
opinion,  has  said :  ^' 

"If  the  numerous  and  varied  regulations  and  practices  of  car- 
riers which  enter  so  vitally  into  questions  of  transportation  do 
not  'affect  rates.'  in  the  sense  attributed  by  counsel  for  the  de- 
fendant to  that  phrase,  and  therefore  lie  outside  the  jurisdiction 
of  the  commission,  our  pdwer  to  protect  the  shipping  public 
against  abuses  is  much  less  extensive  than  has  generally  ])een  un- 
derstood. There  is  no  more  insidious  or  effective  way  by  which 
a  carrier  may  discriminate  between  its  shippers  than  through  a 
regulation  or  practice  that  denies  to  them  the  equal  enjoyment 
of -its  facilities.  **********  in  our  view 
any  practice  or  regulation  that  unlawfully  discriminates  against 
one  shipper  and  affords  an  undue  preference  to  another  shipper 
is  a  regulation  or  practice  affecting  rates  within  the  meaning  of 
that  phrase  as  used  in  the  clause  in  question.  Any  regulation  ur 
practice  that  withdraws  from  a  shipper  the  equal  opportunity  of 
using  and  taking  advantage  of  the  rates  offered  by  a  carrier  to 
the  public  is  clearly  a  regulation  or  practice  affecting  rates  in 
the  sense  in  which  that  phrase  is  used  in  the  amended  act  at  the 
point  in  question.  To  hold  otherwise,  as  the  defendant  urges, 
would  be  to  put  the  narrowest  possible  construction  upon  those 
words,  in  disregard  of  the  general  objects  and  purposes  of  the 
enactment.  And  this  we  are  not  w^arranted  in  doing  under 
any  recognized  rule  of  statutory  construction,  and  more  espe- 
cially when  a  remedial  statute  is  imder  consideration.  After 
having  vested  in  the  commission  the  power  to  redress  wrongs 
arising  out  of  unreasonable  and  unjust  rates,  we  are  not  ready 
to  accept  the  view  that  the  Congress  has  contented  itself  with  a 
mere  admonition  in  the  law  against  the  great  w'rongs  that  may 
be  done  against  shippers  through  imjust  regulations  and  prac- 
tices. ********  It  will  be  observed  that  the 
clause  divides  itself  naturally  into  two  parts;  it  authorizes  the 
commission,  first,  to  consider  the  wrong  alleged,  and  then  to 
apply  the  remed3\  If  it  shall  be  of  the  opinion  after  a  full  hear- 
se Eail  and  River  Coal  Co.  v.  Bal-  86. 
timore  &  0.  E.  Co.,  14  I.  C.  C.  E. 


§  164.]  OF  Act  to  Eegiilate  Commerce.  241 

ing  that  the  regulation  or  practice  complained  of  is  unreasonable 
and  unjust,  the  commission  may  remedy  the  wrong  by  prescrib- 
ing a  just  and  reasonable  regulation  or  practice  thereafter  to  be 
followed  by  the  carrier.  In  the  tirst  part  of  the  provision  ref- 
erence is  made  to  regulations  or  practices  'affecting  rates;'  the 
remedy  offered  by  the  provision  consists  in  the  prescribing  by 
the  commission  of  a  just  and  reasonable  regulation  or  practice 
with  respect  to  'transportation.'  While  there  is  here  some  con- 
tradiction in  the  words  used,  we  do  not  imderstand  that  there  is 
•  any  contradiction  in  the  real  substance  of  the  clause  or  in  its 
meaning.  Each  part  of  the  clause  has  a  necessary  relation  to  the 
other  part,  and  the  words  'regulations'  and  'practices'  as  used 
in  both  parts  must  necessarily  be  used  in  the  same  sense.  If 
they  are  not  so  used  it  is  difficult  to  see  how  a  wrongful  regu- 
lation or  practice  'affecting  rates,'  in  the  sense  of  affecting  the 
amount  of  the  freight  charges  on  a  shipment,  could  ordinarily  be 
cured  by  the  substitution,  as  the  clause  now  under  considera- 
tion provides,  of  a  just  or  reasonable  regulation  or  practice  in 
respect  to  'transportation.'  Obviously  the  two  phrases  refer  to 
the  same  kind  of  regulations  and  practices,  namely,  the  regula- 
tions and  practices  under  which  the  transportation  of  interstate 
carriers  is  conducted.  When  both  phrases  are  considered  to- 
gether and  the  whole  clause  is  read  in  the  light  of  the  great  pur- 
poses underlying  the  act,  there  is  little  difficulty  in  reaching  the 
conclusion  that  the  words  'any  regulations  or  practices  whatso- 
ever *  *  *  affecting  such  rates'  are  used  synonymously 
with  the  words  'regulation  or  practice  in  respect  to  such  trans- 
portation;' and  that' both  clauses  are  to  be  read  in  the  widest 
possible  sense  and  embrace  all  regulations  and  practices  of  car- 
riers imder  which  they  offer  their  services  to  the  shipping  pub- 
lic and  conduct  their  transportation.  We  find  no  difficulty  in 
holding,  under  section  15  of  the  amended  act,  that  ample  au- 
thority is  vested  in  the  commission  to  deal  with  the  undue  pref- 
erences and  unlawful  discriminations  forbidden  under  sections 
2  and  3  and  elsewhere  in  the  act,  regardless  of  the  form  of  the 
rule,  regulation,  or  practice  under  Avhich  such  wrongs  may  be 
perpetrated." 

Eules  and  regulations  as  to  who  shall  load  and  unload  freight 
are  practices  subject  to  the  control  of  the  commission.'*     Tar- 

'^  Wholesale  Fruit  and  Producers'       Co.,  14  I.  C.  C.  R.  410. 
Asso.   V.  Atchison,  T.   &   S.   F.   Ry. 


242  Enforcement  by  the  Commission  [§  165. 

riers  conceding  a  regulation  to  shippers  arc  entitled  to  a  profit 
over  the  cost  thereof.*' 

§  165.  Cominission  may  establish  through  routes  and  joint 
rates  and  prescribe  the  division  of  the  joint  rate. — By  section 
fifteen  of  the  amended  act  the  commission  may,  after  hearing  on 
a  complaint,  establish  through  routes  and  joint  rates  as  the  max- 
imum to  be  charged  and  prescribe  the  division  of  such  rates  as 
hereinbefore  provided,  and  the  terms  and  conditions  under  which 
such  through  routes  shall  be  operated,  when  that  may  be  neces- 
sary to  give  effect  to  any  provision  of  this  act.  and  the  carriers 
complained  of  have  refused  or  neglected  to  voluntarily  establish 
such  through  routes  and  joint  rates,  provided  no  reasonable  or 
satisfactory  through  route  exists,  and  this  provision  shall  apply 
when  one  of  the  connecting  carriers  is  a  water  line.  The  com- 
mission may  also,  where  the  carriers  fail  to  agree  among  them- 
selves as  to  a  division  of  a  joint  rate,  make  an  order  prescribing 
the  just  and  reasonable  proportion  of  such  joint  rate  to  be  re- 
ceived by  each  carrier  party  thereto.  Of  this  law  Mr.  Commis- 
sioner Prouty  said : " 

"The  commission  held  in  Enterprise  Transportation  Co.  v. 
Pennsylvania  Railroad,  12  I.  C.  C.  Rep.,  326,  that  upon  an  ap- 
plication of  this  sort  two  questions  must  be  determined  by  the 
commission :  First,  Does  a  satisfactory  through  route  already 
exist  between  the  points  involved?  Second,  If  not,  should  the 
commission,  as  a  matter  of  discretion,  establish  the  route  asked 
for?  The  defendants  now  contend  that  there  is  still  another 
jurisdictional  fact  which  must  be  found  by  us,  namely.  Does  the 
failure  upon  the  part  of  the  defendants  to  form  a  through  route 
violate  any  provision  of  the  act  to  regulate  commerce? 

''The  fifteenth  section  invests  the  commission  with  authority 
to  order  a  through  route  'when  that  may  be  necessary^  to  give 
effect  to  any  provision  of  this  act,'  and  the  defendants  urge  that 
it  must  appear  that  the  failure  to  establish  the  through  route 
operates  as  a  violation  of  some  provision  of  the  act,  as  by  the 
creation  of  a  discrimination  or  the  imposition  of  an  unreasonable 
rate.  But  the  first  section  of  the  act,  as  amended  June  29,  1906, 
provides  that  it  shall  be  the  duty  of  carriers  subject  to  the  pro- 
visions of  the  act  'to  establish  through  routes  and  just  and  rea- 

^  Southern   Ey.    Co.    v.    St.    Louis  "Pacific      Coast      Lumber      Mfg. 

Hay  &  Grain  Co.,  214  U.  S.  297,  b'li  Asso.  v.  Northern  P.  K.  Co.,  14  1. 
L.  Ed.         ,         Sup.  Ct.         .  C.  C.  R.  51,  53. 


§  165.]  OF  Act  to  Regulate  Commerce.  243 

sonable  rates  applicable  thereto.'  The  refusal,  therefore,  upon 
the  part  of  carriers  to  establish  and  maintain  just  and  reasonable 
through  routes  is,  to-day,  of  itself  a  violation  of  the  act. 

' '  Every  attempt  to  require  by  law  the  establishment  of  through 
routes  and  joint  rates  has  been  met  by  the  objection  upon  the 
part  of  railways  that  such  arrangements  were  properly  matters 
of  contract,  and  that  each  railway  should  be  left  free  to  control 
its  O'^Ti  traffic.  It  has  been  insisted  that  unless  this  were  so 
railway  operation  would  be  unjustly  hampered  and  railway  de- 
velopment imduly  checked. 

"This  contention  upon  the  part  of  the  railways  has  appar- 
ently been,  to  an  extent,  recognized  by  Congress  in  the  enact- 
ment of  this  statute.  The  commission  is  only  allowed  to  estab- 
lish a  through  route  and  a  joint  rate  when  the  carriers  them- 
selves have  neglected  to  provide  a  reasonable  and  satisfactory 
one. ' ' 

With  reference  to  the  division  of  a  joint  rate  ]\Ir.  Commis- 
sioner Harlan  said : " 

''The  phrase  'the  just  and  reasonable  proportion  of  such 
joint  rate  to  be  received  by  each  carrier'  necessarily  implies  that 
it  is  the  duty  of  the  commission  in  fixing  divisions  to  take  into 
consideraton  all  the  circumstances,  conditions,  and  equities  that 
are  necessary-  to  arrive  at  what  is  a  fair  and  proper  adjustment 
of  the  situation  as  between  the  two  roads,  and  precludes  the  idea 
that  joint  rates  must  be  divided  between  the  participating  car- 
riers on  a  mileage  or  any  other  fixed  basis." 

Carriers  must  furnish  reasonable  through  routes  and  can  not 
escape  from  such  duty  because  in  doing  so  their  revenues  may 
be  reduced  by  reason  of  competition  with  other  shippers.  On 
this  subject  the  commission,  through  Mr.  Commissioner  Harlan, 
said : ''' 

"An  interstate  carrier  in  order  to  build  up  enterprises  of 
the  same  character  on  its  own  line  and  to  prevent  the  trade  of 
its  local  industries  from  being  displaced  by  the  competition  of 
manufacturers  of  the  same  commodities  on  connecting  lines,  can 
not  deny  to  industries  on  the  lines  of  such  connections  the  ben- 
efit of  through  routes  and  joint  rates;  nor  is  the  fact  that  the 


"Star    Grain    &    Lumber    Co.    v.  « Cardiff  Coal  Co.  v.  Chicago,  M. 

Atchison,   T.    &    S.    F.    Ry.    Co.,    14       &  St.  P.  Ry.  Co.,  13  I.  C.  C.  R.  460. 
I.  C.  C.  R.  364,  370. 


2-1-1  Enforcement  by  the  Commission  [§  166. 

revenues  of  the  carrier  may  be  reduced  by  establishing  such 
through  routes  and  joint  rates  a  material  consideration.  It  may 
be  laid  down  as  a  general  rule,  admitting  of  no  qualification, 
that  a  manufacturer  or  merchant  who  has  traffic  to  move  and  is 
ready  to  pay  a  reasonable  rate  for  the  service,  has  a  right  to  have 
it  moved  and  to  have  reasonable  rates  established  for  the  move- 
ment, regardless  of  the  fact  that  the  revenues  of  the  carrier  may 
be  reduced  by  reason  of  its  competition  with  other  shippers  in 
the  same  market;  and  he  has  the  right  also  to  have  the  benefit 
of  through  routes  and  reasonable  joint  rates  to  such  distant 
markets  if  no  reasonable  or  satisfactory  through  route  already 
exists. ' ' 

§  166.  Procedure  before  the  commission. — The  Interstate 
Commerce  Commission  is  not  a  court,  and  while  it  hears  testi- 
mony from  which  it  reaches  conclusions  and  while  some  of  its 
forms  of  procedure  are  analogous  to  those  of  a  court,  it  is  not 
and  should  not  be  embarrassed  by  purely  technical  rules.  Com- 
plaints made  to  it  in  the  way  of  an  informal  letter  do  and 
should  obtain  its  action.  Rules  of  evidence  are  not  strictly  en- 
forced in  its  hearings.  It  may  and  frequently  does  consider  the 
records  required  to  be  filed  with  it,  thus  the  annual  reports  made 
to  and  filed  with  the  commission,  all  legally  filed  schedules  and 
other  similar  documents  are  considered.  Mr.  Justice  Day  has 
stated  these  propositions  as  follows :  " 

"The  inquiry  of  a  board  of  the  character  of  the  Interstate 
Commerce  Commission  should  not  be  too  narrowly  constrained 
by  technical  rules  as  to  the  admissibility  of  proof.  Its  function 
is  largely  one  of  investigation,  and  it  should  not  be  hampered  in 
making  inquiry  pertaining  to  interstate  commerce  by  those  nar- 
row rules  which  prevail  in  trials  at  common  law,  where  a  strict 
correspondence  is  required  between  allegation  and  proof." 

The  usual  history  of  a  complaint  before  the  commission  is  as 
follows:  Printed  complaints  are  filed  in  sufficient  number  to 
have  three  for  the  files  of  the  commission  and  to  enable  the  sec- 
retary to  furnish  or  serve  each  defendant  with  a  copy,  answer  is 
filed  and  a  day  set  for  taking  testimony.  Testimony  may  be 
heard  before  all  or  a  less  number  of  the  commissioners,  or  before 
a  special  examiner  appointed  by  the  commission  for  the  pur- 

«Int,    Com.    Com.    v.    Baird,    194       Sup.  Ct.  563. 
U.  S.  25,  44,  48  L.  Ed.  861,  869,  24 


§  167.]  OP  Act  to  Eegulate  Commerce.  245 

pose.  The  hearing  may  be  at  any  place  designated  by  the  com- 
mission. Depositions  may  be  taken.  After  the  testimony  has 
been  taken,  upon  application,  usually  made  at  the  conclusion  of 
the  testimony  if  the  hearing  is  before  a  commissioner  or  com- 
missioners, or  in  a  letter  to  the  secretary,  time  is  fixed  for  filing 
printed  briefs.  After  briefs  are  filed  the  cause  is  set  for  argu- 
ment, as  a  rule,  at  Washington  and  oral  argument  may  be  had. 
Traffic  men  may  and  sometimes  do  appear  and  conduct  hear- 
ings and  file  arguments.  "When  a  decision  is  reached,  the  opin- 
ion is  written  and  printed.  After  it  is  printed,  the  decision 
is  made  public  and  a  certified  copy  of  the  opinion  sent  to  the 
respective  parties  and  a  certified  copy  of  the  order  served  on  the 
party  against  whom  it  is  made.  These  hearings  are  conducted 
with  the  decorum  and  dignity  demanded  by  the  importance  of 
the  tribunal  and  the  high  standing  of  its  members,  but  the  tech- 
nical rules  of  courts  are  not  strictly  adhered  to.  The  act  as  to 
the  procedure  by  the  commission  says : 

''That  the  commission  may  conduct  its  proceedings  in  such 
manner  as  will  best  conduce  to  the  proper  dispatch  of  business 
and  to  the  ends  of  justice.  *s  *  *  *  *  *  Said  commis- 
sion may,  from  time  to  time,  make  or  amend  such  general  rules 
or  orders  as  may  be  requisite  for  the  order  and  regulation  of  pro- 
ceedings before  it,  including  forms  of  notices  and  the  service 
thereof,  which  shall  conform,  as  nearly  as  may  be,  to  those  in 
use  in  the  courts  of  the  United  States.  Any  party  may  appear 
before  said  commission  and  be  heard,  in  person  or  by  attorney." 

By  virtue  of  this  power,  the  commission  has  formulated  a  few 
rules  of  procedure  which  are  copied  in  the  next  section. 

§  167.  Rules  of  procedure  prescribed  by  the  commission. — 
Under  authority  granted  under  section  seventeen  of  the  act,  the 
Interstate  Commerce  Commission  has  promulgated  the  following 
rules  of  practice. 

7. — Puhlic  Sessions. 

The  general  sessions  of  the  commission  for  heai-ing  contested 
cases,  including  oral  argument,  will  be  held  at  its  office  in  the 
American  Bank  Building.  No.  1317  F  Street  N.  W.,  Washington, 
D.  C,  and  the  two  weeks  beginning  with  tlic  first  IMonday  in'each 
nioiitli  fire  set  aside  for  that  purpose. 


246  Rules  of  Procedure  [§  167. 

II. — Parties  to  Cases. 

Any  person,  firm,  company,  corporation,  or  association,  mer- 
cantile, agricultural,  or  manufacturing  society,  body  politic  or 
nmnicipal  organization,  or  any  common  carrier,  or  the  railroad 
commissioner  or  connnission  of  any  state  or  territory,  may  com- 
plain to  the  commission  by  petition,  of  anything  done,  or  omitted 
to  be  done,  in  violation  of  the  provisions  of  the  act  to  regulate 
commerce  by  any  common  carrier  or  carriers  or  other  parties 
subject  to  the  provisions  of  said  act.  Where  a  complaint  relates 
to  the  rates,  regulations,  or  practices  of  a  single  carrier,  no 
other  carrier  need  be  made  a  party,  but  if  it  relates  to  matters 
in  which  two  or  more  carriers,  engaged  in  transportation  by 
continuous  carriage  or  shipment,  are  interested,  the  several  car- 
riers participating  in  such  carriage  or  shipment  are  proper  par- 
ties defendant. 

Where  a  complaint  relates  to  rates,  regulations,  or  practices 
of  carriers  operating  different  lines,  and  the  object  of  the  pro- 
ceeding is  to  secure  correction  of  such  rates,  regulations  or  prac- 
tices on  each  of  said  lines,  all  the  carriers  operating  such  lines 
must  be  made  defendants. 

When  the  line  of  a  carrier  is  operated  by  a  receiver  or  trus- 
tee, both  the  carrier  and  its  receiver  or  trustee  should  be  made 
defendants  in  cases  involving  transportation  over  such  line. 

Persons  or  carriers  not  parties  may  petition  in  any  proceeding 
for  leave  to  intervene  and  be  heard  therein.  Such  petition  shall 
set  forth  the  petitioner's  interest  in  the  proceeding.  Leave 
granted  on  such  application  shall  entitle  the  intervener  to  ap- 
pear and  be  treated  as  a  party  to  the  proceeding,  but  no  person 
not  a  carrier  who  intervenes  in  behalf  of  the  defense  shall  have 
the  right  to  file  an  answer  or  otherwise  become  a  party,  except 
to  have  notice  of  and  appear  at  the  taking  of  testimony,  produce 
and  cross-examine  witnesses,  and  be  heard,  in  person  or  by  coun- 
sel, on  the  argument  of  the  case. 

III. — Complaints. 

Complaints  must  be  by  petition  setting  forth  briefly  the  facts 
claimed  to  constitute  a  violation  of  the  law.  The  name  of  the 
carrier  or  carriers  complained  against  must  be  stated  in  full, 
and  the  address  of  the  petitioner,  Avith  the  name  and  address  of 
his  attorney  or  counsel,  if  any,  must  appear  upon  the  petition. 


§  167.]      Before  Interstate  Commerce  Commission.  247 

The  petition  need  not  be  verified.  The  complainant  must  fur- 
nish as  many  copies  of  the  petition  as  there  may  be  parties  com- 
plained against  to  be  served  and  three  additional  copies  for  the 
use  of  the  commission. 

The  conunission  will  cause  a  copy  of  the  petition,  with  notice 
to  satisfy  or  answer  the  same  within  a  specified  time,  to  be  served 
personally  or  by  mail,  in  its  discretion,  upon  each  defendant. 

IV. — Answers. 

A  defendant  must  answer  within  twenty  days  from  the  date  of 
the  notice  above  provided  for,  but  the  commission  may,  in  a 
particular  case,  require  the  answer  to  be  filed  within  a  shorter 
time.  The  time  prescribed  in  any  case  may  be  extended,  upon 
good  cause  shown,  by  the  commission.  The  original  answer  must 
be  filed  with  the  secretary  of  the  commission  at  its  office  in 
Washington,  and  a  copy  thereof  at  the  same  time  served  by  the 
defendant,  personally  or  by  mail,  upon  the  complainant,  who 
must  forthwith  notify  the  secretary  of  its  receipt.  The  answer 
must  specifically  admit  or  deny  the  material  allegations  of  the 
petition,  and  also  set  forth  the  facts  which  will  be  relied  upon  to 
support  any  such  denial.  If  a  defendant  shall  make  satisfaction 
before  answering,  a  written  acknowledgment  thereof,  showing 
the  character  and  extent  of  the  satisfaction  given,  must  be  filed 
by  the  complainant,  and  in  that  case  the  fact  and  manner  of  sat- 
isfaction, without  other  matter,  may  be  set  forth  in  the  answer. 
If  satisfaction  be  made  after  the  filing  and  service  of  an  an- 
swer, such  written  acknowledgment  must  also  be  filed  by  the 
complainant,  and  a  supplemental  answer  setting  forth  the  fact 
and  manner  of  satisfaction  must  be  filed  by  the  defendant. 

V. — Notice  in  Nature  of  Demurrer. 

A  defendant  who  deems  the  petition  insufficient  to  show  a 
breach  of  legal  duty  may,  instead  of  answering  or  formally  de- 
murring, serve  on  the  complainant  notice  of  hearing  on  the  peti- 
tion ;  and  in  such  case  the  facts  stated  in  the  petition  will  be 
deemed  admitted.  A  copy  of  the  notice  must  at  the  same  time 
be  filed  with  the  secretary  of  the  .commission.  The  filing  of  an 
answer,  however,  will  not  be  deemed  an  admission  of  the  suffi- 
ciency of  the  petition,  but  a  motion  to  dismiss  for  insufficiency 
may  be  made  at  the  hearing. 


248  Rules  of  Procedure  [§  167. 

VI. — Service  of  Papers. 

Copies  of  notices  or  other  papers  must  be  served  upon  the  ad- 
verse party  or  parties,  personally  or  by  mail,  and  when  any 
party  has  appeared  by  attorney  service  upon  such  attorney  shall 
be  deemed  proper  service  upon  the  party. 

VII. — Amendments. 

Upon  application  of  any  party,  amendments  to  any  petition 
or  answer,  in  any  proceeding  or  investigation,  may  be  allowed 
by  the  commission,  in  its  discretion. 

VIII. — Adjournments  and  Extensions  of  Time. 

Adjournments  and  extensions  of  time  may  be  granted  upon 
the  application  of  any  party,  in  the  discretion  of  the  commission. 

IX. — Stipulations. 

The  parties  to  any  proceeding  or  investigation  before  the  com- 
mission  may,  by  stipulation  in  writing  filed  with  the  secretary, 
agree  upon  the  facts,  or  any  portion  thereof,  involved  in  the 
controversy,  which  stipulation  shall  be  regarded  and  used  as 
evidence  on  the  hearing.  It  is  desired  that  the  facts  be  thus 
agreed  upon  whenever  practicable. 

X. — Hearings. 

Upon  issue  being  joined  by  the  service  of  an  answer  or  notice 
of  hearing  on  the  petition,  the  commission  will  assign  a  time  and 
place  for  hearing  the  case,  which  w411  be  at  its  office  in  Wash- 
ington, unless  otherwise  ordered.  Witnesses  will  be  examined 
orally  before  the  commission,  imless  their  testimony  be  taken  or 
the  facts  be  agreed  upon  as  provided  for  in  these  rules.  The 
complainant  must  in  all  cases  establish  the  facts  alleged  to  con- 
stitute a  violation  of  the  law,  imless  the  defendant  admits  the 
same  or  fails  to  answer  the  petition.  The  defendant  must  also 
prove  facts  alleged  in  the  answer,  unless  admitted  by  the  peti- 
tioner, and  fully  disclose  its  defense  at  the  hearing. 

In  the  case  of  failure  to  answer,  the  commission  will  take  such 
proof  of  the  facts  as  may  be  deemed  proper  and  reasonable,  and 
make  such  order  thereon  as  the  circumstances  of  the  case  appear 
to  require. 


§  167.]      Before  Interstate  Commerce  Commission.  249 

Cases  may  be  heard  by  one  or  more  members  of  the  commis- 
sion, or  by  a  special  agent  or  examiner,  as  ordered  by  the  com- 
mission. "When  testimony  is  directed  to  be  taken  by  a  special 
agent  or  examiner,  such  officer  shall  have  power  to  administer 
oaths,  examine  witnesses,  and  receive  evidence,  and  shall  make 
report  thereof  to  the  commission. 

All  cases  shall  be  orally  argued  in  AYashington,  D.  C,  or  sud- 
mitted  upon  briefs,  unless  otherwise  ordered  by  the  commission. 

XI. — Depositions. 

The  testimony  of  any  witness  may  be  taken  by  deposition,  at 
the  instance  of  a  party,  in  any  case  before  the  commission,  and 
at  any  time  after  the  same  is  at  issue.  The  commission  may  also 
order  testimony  to  be  taken  by  deposition,  in  any  proceeding  or 
investigation  pending  before  it,  at  any  stage  of  such  proceed- 
ings or  investigation.  Such  depositions  may  be  taken  before  any 
authorized  special  agent  or  examiner  of  the  commission,  judge  of 
any  court  of  the  United  States,  or  any  commissioner  of  a  circuit 
or  any  clerk  of  a  district  or  circuit  court,  or  any  chancellor, 
justice,  or  judge  of  a  supreme  or  superior  court,  mayor  or  chief 
magistrate  of  a  city,  judge  of  a  county  court,  or  court  of  com- 
mon pleas  of  any  of  the  United  States,  or  an^^  notary  public, 
not  being  of  counsel  or  attorney  to  either  of  the  parties  or  other- 
wise interested  in  the  proceeding  or  investigation.  Reasonable 
notice  must  be  given  in  writing  by  the  party  or  his  attorney  pro- 
posing to  take  such  deposition  to  the  opposite  party  or  his  at- 
torney of  record,  which  notice  shall  state  the  name  of  the  wit- 
ness and  the  time  and  place  of  the  taking  of  his  deposition,  and 
a  copy  of  such  notice  shall  be  filed  with  the  secretary  of  the 
commission. 

"When  the  testimony  is  to  be  taken  on  behalf  of  a  common 
carrier  in  any  proceeding  instituted  by  the  commission  on  its 
o\«i  motion,  reasonable  notice  thereof  in  writing  must  be  given 
by  such  carrier  to  the  secretary  of  the  commission. 

Every  person  whose  deposition  is  taken  shall  be  cautioned  and 
sworn  (or  may  affirm,  if  he  so  request)  to  testify  the  whole 
truth,  and  shall  be  carefully  examined.  His  testimony  shall  be 
reduced  to  writing,  whicli  may  bo  type  writing,  by  the  magis- 
trate taking  the  deposition,  or  under  liis  direction,  and  shall, 
after  it  has  been  reduced  to  writing,  l)o  sul)s('iMbe(l  by  tbe  wit- 
ness. 


250  Rules  of  Procedure  [§  167. 

if  a  wituesij  whose  testimony  may  be  desired  to  be  taken  by 
deposition  be  in  a  foreign  country,  the  deposition  may  be  taken 
before  an  officer  or  person  designated  by  the  commission,  or 
agreed  upon  by  the  parties  by  stipulation  in  writing  to  be  filed 
with  the  secretary.  All  depositions  must  be  promptly  filed  with 
the  secretary. 

XII. — Witnesses  and  Suhpoenas. 

Subpoenas  requiring  the  attendance  of  witnesses  from  any 
place  in  the  United  States  to  any  designated  place  of  hearing, 
for  the  purpose  of  taking  the  testimony  of  such  witnesses  orally 
before  one  or  more  members  of  the  commission,  or  an  authorized 
special  agent  or  examiner  of  the  commission,  or  by  deposition, 
will,  upon  the  application  of  either  party,  or  upon  the  order  of 
the  commission  directing  the  taking  of  such  testimony,  be  issued 
by  any  member  of  the  commission. 

Subpoenas  for  the  production  of  books,  papers,  or  documents 
(imless  directed  to  issue  by  the  commission  upon  its  own  mo- 
tion) will  only  be  issued  upon  application  in  writing;  and  when 
it  is  sought  to  compel  witnesses,  not  parties  to  the  proceeding,  to 
produce  such  documentary  evidence,  the  application  must  be 
sworn  to  and  must  specify,  as  nearly  as  may  be,  the  books, 
papers,  or  documents  desired;  that  the  same  are  in  the  posses- 
sion of  the  witness  or  under  his  control ;  and  also,  by  facts  stated, 
show  that  they  contain  material  evidence  necessary  to  the  appli- 
cant. Applications  to  compel  a  party  to  the  proceeding  to  pro- 
duce books,  papers,  or  documents  need  only  set  forth  in  a  general 
way  the  books,  papers,  or  documents  desired  to  be  produced, 
and  that  the  applicant  believes  they  will  be  of  service  in  the  de- 
termination of  the  case. 

Witnesses  whose  testimony  is  taken  orally  or  by  deposition, 
and  the  magistrate  or  other  officer  taking  such  depositions,  are 
severally  entitled  to  the  same  fees  as  are  paid  for  like  services 
in  the  courts  of  the  United  States,  such  fees  to  be  paid  by  the 
party  at  whose  instance  the  testimony  is  taken. 

XIII. — Documentary  Evidence. 

"Where  relevant  and  material  matter  offered  in  evidence  is  em- 
braced in  a  report,  tariff,  rate  sheet,  classification,  book,  pamph- 


§  167.]      Before  Interstate  Commerce  Commission.  251 

let,  written  or  printed  statement,  or  document  of  any  kind  con- 
taining other  matter  not  material  or  relevant  and  not  intended 
to  be  put  in  evidence,  such  report,  etc.,  in  whole,  shall  not  be 
received  or  allow^ed  to  be  filed  in  a  cause  on  hearing  before  this 
commission  or  at  any  time  during  the  pendency  thereof,  but 
counsel  or  other  party  offering  the  same  shall  also  present  in 
convenient  and  proper  form  for  filing  a  copy  of  such  material 
and  relevant  matter,  and  that  only  shall  be  received  aiid  allowed 
to  be  filed  as  e\adence  and  made  a  part  of  the  record  in  such 
cause;  provided,  however,  that,  if  practicable,  such  matter  may 
be  read  and  taken  do^^^l  by  the  reporter  and  thus  made  part  of 
the  record. 

XIV.— Briefs. 

Unless  otherwise  specially  ordered,  printed  briefs  shall  be 
filed  on  behalf  of  the  parties  in  each  case. 

The  brief  for  complainant,  and  the  brief  or  briefs  for  the  de- 
fendants, or  intervenors  shall  contain  an  abstract  of  the  evidence 
relied  upon  by  the  parties  filing  the  same,  and  in  such  abstract, 
reference  shall  be  made  to  the  pages  of  the  record  wherein  the 
evidence  appears.  The  abstract  of  evidence  should  follow  the 
statement  of  the  case  and  precede  the  argument. 

Briefs  shall  be  printed  in  twelve-point  type  on  antique  fin- 
ish paper,  5}i  inches  wide  by  9  inches  long,  with  suitable  mar- 
gins, double  leaded  text  and  single  leaded  citations. 

At  the  close  of  the  taking  of  the  testimony  in  each  case,  the 
commissioner  or  examiner  before  whom  such  testimony  is  taken 
shall  fix  the  specific  dates,  on  or  before  which  the  briefs  of  the 
respective  parties  must  be  filed  with  the  commission  and  served 
on  the  adverse  parties.  The  date  so  fixed,  imless  otherwise  or- 
dered at  said  time,  shall  allow  to  the  respective  parties  the  fol- 
lowing periods  of  time  within  which  to  file  with  the  connnission 
and  serve  their  respective  briefs  on  the  adverse  parties,  to-wit: 
To  the  complainant  30  days  from  the  date  of  the  conclusion  of 
the  testimony;  to  the  defendants  and  intervenors,  15  days  after 
the  specified  date  fixed  for  the  complainant :  and  to  complainant 
for  reply  brief,  10  days  after  the  date  fixed  for  defendants  or 
intervenors.  If  the  briefs  of  the  respective  parties  are  not  filed 
and  served  on  the  date  fixed  for  each,  the  case  will  stand  sub- 
mitted without  briefs  on  the  date  that  defendants  or  intervenors' 
briefs  are  due.     Briefs  of  parties  not  filed  as  aforesaid,   and 


252  Rules  of  Procedure  [§  167. 

served  on  the  respective  parties  on  or  before  the  specific  dates 
fixed  therefor,  will  not  be  received  or  considered  by  the  com- 
mission. 

All  briefs  shall  be  filed  with  the  secretary  and  shall  be  accom- 
panied by  notice  showing  service  upon  the  adverse  parties,  and 
15  copies  of  each  brief  shall  be  filed  for  the  use  of  the  commis- 
sion. 

The  parties  will  be  required  to  comply  strictly  with  this  rule, 
and  except  for  good  cause  shown,  no  extension  of  time  will  be 
allowed.  Applications  for  extension  of  time  in  which  to  file 
briefs  shall  be  by  petition  in  writing  stating  the  facts  on  which 
the  application  rests,  which  must  be  filed  with  the  commission 
at  least  5  days  before  the  time  for  filing  such  brief  has  expired. 

Applications  for  oral  argument  may  be  made  by  any  party 
at  the  close  of  the  taking  of  the  testimony  or  at  the  time  of  the 
filing  of  his  brief.  Such  applications  can  be  granted  only  by  tiie 
commission. 

XV. — Behearings. 

Applications  for  reopening  a  case  after  final  submission,  or 
for  rehearing  after  decision  made  by  the  commission,  must  be  by 
petition,  and  must  state  specifically  the  grounds  upon  which  the 
application  is  based.  If  such  application  be  to  reopen  the  case 
for  further  evidence,  the  nature  and  purpose  of  such  evidence 
must  be  briefly  stated,  and  the  same  must  not  be  merely  cumula- 
tive.' If  the  application  be  for  a  rehearing,  the  petition  must 
specify  the  findings  of  fact  and  conclusions  of  law  claimed  to  be 
erroneous,  with  a  brief  statement  of  the  grounds  of  error;  and 
when  any  decision,  order,  or  requirement  of  the  commission  is 
sought  to  be  reversed,  changed,  or  modified  on  account  of  facts 
and  circumstances  arising  subsequent  to  the  hearing,  or  of  con- 
sequences resulting  from  compliance  with  such  decision,  order, 
or  requirement  which  are  claimed  to  justify  a  reconsideration  of 
the  case,  the  matters  relied  upon  by  the  applicant  must  be  fully 
set  forth. 

XYI. — Printing  of  Pleadings,  Etc. 

Pleadings,  depositions,  and  other  papers  of  importance  shan 
be  printed  or  in  typewriting,  and  when  not  printed  only  one 
side  of  the  paper  shall  be  used. 


§  167.]      Before  Interstate  Commerce  Commission.  253 

XVII. — Copies  of  Papers  or  Testimony. 

Copies  of  any  report,  decision,  order,  or  requirement  of  the 
commission  will  be  furnished  without  charge  upon  application 
to  the  secretary  by  any  person  or  carrier  party  to  the  proceeding. 

One  copy  of  the  testimony  will  be  furnished  by  the  commis- 
sion for  the  use  of  the  complainant  and  one  copy  for  the  use  of 
the  defendant,  without  charge ;  and  when  two  or  more  complain- 
ants or  defendants  have  appeared  at  the  hearing,  such  com- 
plainants or  defendants  must  designate  to  whom  the  copy  for 
their  use  shall  be  delivered. 

XVIII. — Compliance  tvith  Orders. 

Upon  the  issuance  of  an  order  against  any  defendant  or  de- 
fendants, after  hearing,  investigation,  and  report  by  the  com- 
mission, such  defendant  or  defendants  must  promptly  notify  the 
secretary  of  the  commission,  upon  the  date  when  such  order  be- 
comes effective,  as  to  whether  such  defendant  or  defendants  has 
complied  or  not  with  the  provisions  of  said  order;  and  when  a 
change  in  rates  is  required,  such  notice  must  be  given  in  addition 
to  the  filing  of  a  schedule  or  tariff  showing  such  change  in 
rates. 

XIX. — Application  hy  Carriers  Under  Proviso  Clause  of  Fourth 

Section. 

Any  common  carrier  may  apply  to  the  commission,  under  the 
proviso  clause  of  the  fourth  section,  for  authority  to  charge  for 
the  transportation  of  like  kind  of  property  less  for  a  longer  than 
for  a  shorter  distance  over  the  same  line,  in  the  same  direction, 
the  shorter  being  included  within  the  longer  distance.  Such  ap- 
plication shall  be  by  petition,  which  shall  specify  the  places  and 
traffic  involved,  the  rates  charged  on  such  traffic  for  the  shorter 
and  longer  distances,  the  carriers  other  than  the  petitioner  which 
may  be  interested  in  the  traffic,  the  character  of  the  hardship 
claimed  to  exist,  and  the  extent  of  the  relief  sought  by  the  peti- 
tioner. Upon  the  filing  of  such  a  petition,  the  commission  will 
take  such  action  as  the  circumstances  of  the  case  seem  to  reciuire. 

XX. Information  to  Parties. 

The  secretary  of  the  commission  will,  upon  request,  advise  any 
party  as  to  the  form  of  petition,  answer,  or  other  paper  neces- 


254  Forms  of  Procedure  [§  167. 

sary  to  be  filed  in  any  case,  and  furnish  such  information  from 
the  files  of  the  commission  as  will  conduce  to  a  proper  presen- 
tation of  facts  material  to  the  controvers.y. 

XXI. — Address  of  the   Commission. 

All  complaints  concerning  anything  done  or  omitted  to  be  done 
by  any  common  carrier,  and  all  petitions  or  answers  in  any  pro- 
ceedings, or  applications  in  relation  thereto,  and  all  letters  and 
telegrams  for  the  commission,  must  be  addressed  to  Washington, 
D.  C,  imless  otherwise  specially  directed. 

§  168.  Forms. — The  commission  has  prescribed  certain  forms, 
saying:  "These  forms  may  be  used  in  cases  to  which  they  are 
applicable,  with  such  alterations  as  the  circumstances  may  ren- 
der necessary. ' ' 

These  forms  follow: 

No.  1. 

Complaint  Against  a  Single  Carrier. 

Interstate  Commerce  Commission. 

A.  B.  ") 

against  V 

The Eailroad  Company,    j 

The  petition  of  the  above-named  complainant  respectfully 
shows : 

I.  That  (here  let  complainant  state  his  occupation  and  place 
of  business) . 

II.  That  the  defendant  above  named  is  a  common  carrier  en- 
gaged in  the  transportation  of  passengers  and  property  by  rail- 
road between  points  in  the  State  of  and  points  in 

the  State  of ,  and  as  such  common  carrier  is  subject 

to  the  provisions  of  the  act  to  regulate  commerce,  approved  Feb- 
ruary 4,  1887,  and  acts  amendatory  thereof  and  supplementary 
thereto. 

III.  That  (here  state  concisely  the  matters  intended  to  be 
complained  of.  Continue  numbering  each  succeeding  paragraph 
as  in  Nos.  I,  II,  and  III.) 


§  167.]      Before  Interstate  Commerce  Commission.  255 

Wherefore  the  petitioner  prays  that  the  defendant  may  be  re- 
quired to  answer  the  charges  herein,  and  that  after  due  hearing 
and  investigation  an  order  be  made  commanding  the  defendant 
to  cease  and  desist  from  said  violations  of  the  act  to  regulate 
commerce,  and  for  such  other  and  further  order  as  the  com- 
mission may  deem  necessary  in  the  premises.  (The  prayer  may 
be  varied  so  as  to  ask  also  for  the  ascertainment  of  lawful  rates 
or  practices  and  an  order  requiring  the  carrier  to  conform  there- 
to. If  reparation  for  any  w^rong  or  injury  be  desired,  the  peti- 
tioner should  state  the  nature  and  extent  of  the  reparation  he 
deems  proper.) 

Dated  at , ,  190  . 

A.  B. 

(Complainant's  Signature.) 
********* 

No.  2. 

Complaint  Against  Two  or  More  Carriers. 
Interstate  Commerce  Commission. 


A.  B.  ^ 

against  [ 

The Railroad  Company,  ^ 

and  I 

The Railroad  Company,  j 

The  petition  of  the  above-named  complainant  respectfully 
shows : 

I.  That  (here  let  complainant  state  his  occupation  and  place 
of  business.) 

II.  That  the  defendants  above  named  are  common  carriers  en- 
gaged in  the  transportation  of  passengers  and  property  by  con- 
tinuous carriage  or  shipment,  wholly  by  railroad  (or  partly  by 
railroad  and  partly  by  water,  as  the  case  may  be),  between 

points  in  the  State  of   and  points  in  the  State  of 

,  and  as  such  common  carriers  are  subject  to  the  pro- 
visions of  the  act  to  regulate  commerce,  approved  February  4. 
1887,  and  acts  amendatory  thereof  or  supplcinontaiy  tliereto. 

(Then  proceed  as  in  Form  I.) 


250  Forms  of  Procedure  [§  167. 

No.  3. 

Answer. 

Interstate  Commerce  Commission. 

A.  B.  \ 

against  v 

The Railroad  Company.    \ 

The  above  named  defendant,  for  answer  to  the  complaint  in 
this  proceeding,  respectfully  states: 

I.  That  (here  follow  the  usual  admissions,  denials,  and  aver- 
ments.    Continue  numbering  each  succeeding  paragraph). 

Wherefore  the  defendant  prays  that  the  complaint  in  this  i)ro- 
ceeding  be  dismissed.  . 

The Railroad  Company, 

By  E.  F. 
(Title  of  Officer) 


No.  4. 

Notice  by  carrier  under  Rule  V. 
Interstate  Commerce  Commission. 

A.  B.  \ 

against  >- 

The Railroad  Company,    j 

Notice  is  hereby  given  under  Rule  V  of  the  Rules  of  Practice 
in  proceedings  before  "the  commission  that  a  hearing  is  desired 
in  this  proceeding  upon  the  facts  as  stated  in  the  complaint. 

The Railroad  Company, 

By  E.  F. 
(Title  of  Officer) 


§  167,]      Before  Interstate  Commerce  Commission.  257 

No.  5. 
Subpoena. 
To , 


You  are  hereby  required  to  appear  before    in  the 

matter  of  a  complaint  of  against  ,  as  a  wit- 
ness on  the  part  of on  the  .  . .  day  of ,  190  , 

at  .  . .  o'clock,  ...  m.  at ,  and  bring  with  you  then  and 

there  

Dated 


(Seal)  Commissioner. 


Attorney  for 


(NOTICE. — Witness  fees  for  attendance  under  this  subpcena 
are  to  be  paid  by  the  party  at  whose  instance  the  witness  is  sum- 
moned, and  every  copy  of  this  summons  for  the  witness  must 
contain  a  copy  of  this  notice.) 


No.  6. 

Notice  of  taking  depositions  under  Rule  XII. 

Interstate  Commerce  Commission. 

A.  B.  ] 

against  v 

The Railroad  Company,     j 

You  are  hereby  notified  that  G.  H.  will  be  examined  before 

C.  D.,  a (title  of  officer  or  magistrate),  at  .  . .,  on  the 

day  of 190  ,  at  .  .  .  o'clock  in  the noon, 

as  a  witness  for  llic  above  named   complainant    (or  defendant, 
as  the  case  may  be),  according  to  act  of  Congress  in  such  case 


258  Forms  of  Puoceduke  [§  167. 

made  and  provided,  and  the  Enles  of  Practice  of  the  Interstate 
Commerce  Commission,  at  which  time  and  place  you  are  notified 
to  be  present  and  take  part  in.  the  examination  of  the  said  wit- 
ness. 

Dated ,  190  . 

I.  J. 
(Signature  of  complainant  or  defendant,  or  of  counsel) 
To  A.  B.,  the  above-named  complainant  (or  The Rail- 
road Company,  the  above-named  defendant;  or  to  K.  L.,  coun- 
sel for  the  above  named  comphiinant  or  defendant.) 


CHAPTER  V. 

ENF0RCE:\IENT  by  the  courts  of  the  act  to  REG- 
ULATE COMMERCE,  INCLUDING  A  DISCUSSION 
OF  THE  EFFECT  GIVEN  BY  THE  COURTS 
TO  THE  ORDERS  AND  FINDINGS 
OF  THE  COMMISSION. 

§  200.     Jurisdiction   of   the  courts   of  the  states  to   enforce  provisions   of 
the  act  to  regulate  commerce. 

201.  The  enforcement  of  the  provision  making  initial  carrier  liable  for 

loss  and  damage. 

202.  Jurisdiction  of  the  courts  of  the  United  States  to  compel  the  at- 

tendance of  witnesses  before  the  commission  and  enforce  obedi- 
ence to  the  act. 

203.  Jurisdiction  of  the  courts  to  enforce  orders  of  the  commission. 

204.  The  effect  to  be  given  by  courts  to  orders  of  the  commission  re- 

quiring carriers  to  desist  from  some  particular  practice. 

205.  Orders  of  reparation.     Effect  given  by  the  courts. 

206.  The    force    of    the    commission's    orders    fixing    rates,    rules    and 

practices  to  be  observed  in  the  future. 

§  200.  Jurisdiction  of  the  courts  of  the  states  to  enforce  pro- 
visions of  the  act  to  regulate  commerce. — The  act  to  regulate  com- 
merce in  the  rights  therein  specified  does  little  more  than  to  ex- 
press the  law  as  it  existed  at  common  law.  The  right  to  reason- 
able rates  was  admittedly  a  common  law  right,  and  the  Su- 
preme Court  of  the  United  States  we  have  seen  infra  decided 
that  equality  of  treatment  under  substantially  similar  circum- 
stances was  also  a  common  law  right.  The  prohibition  of  pool- 
ing, the  requirement  of  continuous  transportation,  that  through 
routes  and  joint  rates  shall  be  established,  that  tariffs  shall  be 
filed,  maintained  and  made  public,  and  the  other  limitations  on 
the  conduct  of  common  carriers,  while  requiring  more  than  was 
their  duty  at  common  law,  are  all  but  provisions  to  make  effec- 
tive the  great  common  law  right  to  reasonable  charges  without 
unjust  discrimination  or  undue  preference.  These  remedies  and 
others  provided  in  the  act  are  in  addition  to,  though  not  in  dero- 
gation of.  the  common  law  remedies.  Whenever  a  court  is  men- 
tioned in  the  statutes,  the  courts  of  the  United  States  are  the 

259 


260  Enforcement  p.v  the  Courts  [§200. 

ones  named.  The  power  to  regulate  coniinerce  between  the 
states  and  with  foreign  countries  is  vested  exclusively  in  the 
legislative  branch  of  the  federal  government.  "The  exclusive 
power  of  legislation  necessarily  includes  the  exclusive  jurisdic- 
tion," says  Mr.  Justice  Moody,  speaking  of  another  kind  of 
jurisdiction,  in  Western' Union  Tel.  Co.  v.  Childs,  214  U.  S.  274, 
278,  53  L.  Ed.  Sup.  Ct.         .     The  state  can  not  exercise 

power  directly  over  interstate  commerce,  and,  if  the  state  has 
no  power,  it  would  seem  to  follow  that  its  courts,  which  are 
but  branches  of  the  state  government,  would  also  be  without 
the  jurisdiction  to  exercise  the  judicial  power  over  that  com- 
merce. The  state  courts  might  enforce  a  mere  right  growing  out 
of  contracts  relating  to  interstate  commerce  although  the  right 
be  given  by  act  of  Congress,  provided  such  power  in  the  state 
courts  could  be  exercised  compatibly  with  the  general  purposes 
of  the  act.  The  act  does  not  expressly  exclude  the  state  courts 
from  all  exercise  of  jurisdiction,  but  as  said  by  Mr.  Justice  Story ,^ 
"it  is  manifest  that  the  judicial  power  of  the  United  States  is 
unavoidably,  in  some  cases,  exclusive  of  all  state  authority,  and, 
in  all  others,  may  be  made  so  by  Congress."  From  these  facts 
and  from  the  inherent  lack  of  power  in  the  courts  of  the  sev- 
eral states  to  enter  decrees  that  could  be  enforced  against  an  il- 
legal practice  or  rate  that  extends  beyond  the  borders  of  such 
state;  it  would  seem  that  in  cases  arising  under  the  act  to  regu- 
late commerce  that  the  judicial  power  of  the  United  States  is 
"unavoidably     *     *     *     *     exclusive  of  all  state  authority." 

As  early  as  1888  Judge  Thayer  held  that  a  suit  to  recover 
damages  for  a  violation  of  the  act  to  regulate  commerce  w^as  one 
of  which  the  federal  courts  had  exclusive  jurisdiction,  and  that 
such  was  the  law  "even  if  the  acts  complained  of  do  give  a 
right  of  action  at  common  law.  "^  The  case  of  Kentucky  and 
Indiana  Bridge  Co.  v.  Louisville  &  Nashville  R.  Co.'  was  founded 
upon  an  order  of  the  Interstate  Commerce  Commission,  and  by 
the  express  language  of  the  statute,  section  16,  was  triable  in  the 
courts  of  the  United  States.  Judge  Jackson,  however,  held  the 
case  to  be  "the  institution  of  an  original  proceeding  in  court, 
where   all  questions  were  to  be   reheard   and   re-examined   de 

^Martin  v.   Hunter,   1   Wheat.   14  ^57   Fed.   567,   614,   615,   2   L.   K. 

U.  S.  304,  377,  4  L.  Ed.  97.  A.  289,  2  I.  C.  E.  351. 

^  Conor  V.  Vicksburg  &  M.  R.  Co., 
36  Fed.  273,  1  L.  K.  A.  331. 


§  167.]  OF  THE  Act  to  Eegulate  Commerce.  261 

novo."    Upon  this  holding,  the  question  arose  as  to  the  jurisdic- 
tion of  the  court,  and  upon  this  point  Judge  Jackson  said : 

"As  an  original  and  independent  suit,  can  the  jurisdiction  of 
this  court  be  maintained,  inasmuch  as  both  petitioner  and  re- 
spondent are  corporations  (and  therefore  citizens  of  the  State 
of  Kentucky)  ?  "We  think  there  can  be  no  doubt  on  this  C|ues- 
tion.  The  right  asserted  by  petitioner  arises  and  is  claimed 
under  a  law  of  the  United  States,  which  relates  to  a  subject-mat- 
ter over  which  Congress  had  exclusive  control.  This  is  sufficient 
to  sustain  the  court's  jurisdiction,  independent  of  the  citizenship 
of  the  parties  to  the  controversy,  since  it  involves  a  federal  ques- 
tion." 

The  terms  of  the  act  require  suits  brought  under  sections  eight 
and  nine  to  be  brought  "in  any  district  or  circuit  court  of  the 
United  States  of  competent  jurisdiction,"  and,  therefore,  suits 
for  damages  under  the  act  to  regulate  commerce  are,  by  express 
enactment,  within  the  exclusive  jurisdiction  of  such  courts.*  In 
Texas  &  Pac.  Ey.  Co.  v.  Abilene  Cotton  Oil  Co.,^  the  Supreme 
Court  decided  that  a  state  court  had  no  jurisdiction  to  maintain 
a  suit  for  damages  against  a  common  carrier  for  charging  an  un- 
reasonable rate  on  the  transportation  of  interstate  freight.  This 
decision  was  not  placed  upon  the  theory  of  exclusive  jurisdiction 
in  the  federal  courts  but  upon  the  principle  that  courts  could 
not  prior  to  action  by  the  Interstate  Commerce  Commission  de- 
termine the  question  of  whether  or  not  a  particular  rate  which 
had  been  set  out  in  a  schedule  of  charges  duly  tiled  with  the 
commission  was  reasonable.  The  argument  of  the  court,  how- 
ever, does  support  the  conclusion  here  stated.  In  Northern  Pa- 
cific Ry.  Co.  v.  Pacific  Coast  Lumber  Mfrs.  Asso.,"  the  circuit 
court  of  appeals  for  the  Ninth  Circuit  had  before  it  an  appeal 
from  an  interlocutory  order  enjoining  certain  carriers  engaged 
in  interstate  commerce  from  making  an  unreasonable  advance 
in  rates  on  interstate  transportation.  In  the  lower  court  the 
carriers  had  contended  that  as  they  were  not  inhabitants,  of  the 
district  in  which  the  suit  was  brought,  the  circuit  court  had  no 
jurisdiction  to  enter  an  order  against  them.  In  the  circuit  court 
of  appeals  the  question  was  fully  discussed,  authorities  cited  and 

*  Van  Patten  v.  Chicago,  M.  &  St.  ■'  204  U.  S.  420,  51  L.  Ed.  553,  27 

P.   R.    Co.,    74   Fed.   981.      See  also  Sup.  Ct.  350. 

Sheldon  v.  Wabash  R.  Co.,  105  Fed.  "165  Fed.  ],  9,  10. 
785. 


2G2  Enforcement  by  the  Courts  [§200. 

the  conclusion  reached  that  the  jnrisdiction  of  federal  courts  in 
such  a  case  was  exclusive,  and  being  exclusive,  suit  could  be 
maintained  wherever  the  defendants  could  l)e  found  and  served. 
Though  Judge  Eoss  dissented  from  the  majority  opinion  of  the 
court,  on  this  point  he  agreed.^ 

The  case  of  j\lurray  v.  Chicago  &  N.  W.  Ky.  Co.'  contains  an 
interesting  discussion  and  is  here  reproduced: 

"A  further  point  is  made  in  support  of  the  demurrer,  to  the 
effect  that  this  court  succeeds  only  to  the  jurisdiction  of  the 
state  court  in  which  the  action  was  originally  brought,  and  that 
state  courts  have  no  jurisdiction  over  cases  arising  out  of  inter- 
state commerce,  the  argument  being  that,  as  the  state  cannot 
legislate  touching  interstate  commerce,  the  state  courts  are  with- 
out power  to  determine  cases  of  the  like  character.  This  posi- 
tion is  not  well  taken.  The  limitations  upon  the  legislative 
power  of  the  nation  and  of  the  several  states  do  not  necessarily 
apply  to  the  judicial  branches  of  the  national  and  state  govern- 
ments. The  legislature  of  a  state  cannot  abrogate  or  modify  any 
of  the  provisions  of  the  federal  constitution  nor  of  the  acts  of 
Congress  touching  matters  within  congressional  control,  but  the 
courts  of  the  state,  in  the  absence  of  a  prohibitory  provision  in 
the  federal  constitution  or  acts  of  Congress,  have  full  jurisdic- 
tion over  cases  arising  under  the  constitution  and  laws  of  the 
United  States.  The  courts  of  the  states  are  constantly  called 
upon  to  hear  and  decide  cases  arising  under  the  federal  consti- 
tution and  laws,  just  as  the  courts  of  the  United  States  are 
called  upon  to  hear  and  decide  cases  arising  under  the  law  of 
the  state,  when  the  adverse  parties  are  citizens  of  different  states. 
The  duty  of  the  courts  is  to  explain,  apply,  and  enforce  the  ex- 
isting law  in  the  particular  cases  brought  before  him.  If  the  law 
applicable  to  a  given  case  is  of  federal  origin,  the  legislature  of 
a  state  cannot  abrogate  or  change  it,  but  the  courts  of  the  state 
may  apply  and  enforce  it;  and  hence  the  fact  that  a  given  sub- 
ject, like  interstate  commerce,  is  beyond  state  legislative  control, 
does  not,  ipso  facto,  prevent  the  courts  of  the  state  from  exer- 
cising jurisdiction  over  cases  which  grow  out  of  this  commerce. 
Had  this  action  remained  in  the  state  court  in  which  it  was 


^  Union  Pac.   E.   Co.  v.   Oregon  &  *  Murray  v.  Chicago  &  N.  W.  Ry. 

Washington  L.   M.   Asso.,   165   Fed.       Co.,   62   Fed.   24,  42,  43.     Affirmed, 
13,   18.  92  Fed.  868,  35  C.  C.  A.  62. 


§  200.]  OF  THE  Act  to  Regulate  Commerce.  263 

originally  brought,  that  court  would  have  had  jursdiction  to 
hear  and  determine  the  issues  between  the  parties,  because  Con- 
gress had  not  enacted  that  jurisdiction  over  cases  of  this  char- 
acter is  confined  exclusively  to  the  courts  of  the  United  States, 
and  therefore  the  jurisdiction  of  the  state  court  was  full  and 
complete. ' ' 

This  extensive  quotation  from  the  opinion  of  Judge  Shiras 
is  inserted  because  it  presents  the  arguments  against  the  posi- 
tion here  taken.  In  considering  the  effect  of  this  opinion,  which 
was  affirmed  by  the  circuit  court  of  appeals,  it  should  be  re- 
membered that  the  cause  of  action  there  sued  on  arose  prior  to 
the  enactment  of  the  interstate  commerce  act,  and  was,  there- 
fore, to  be  construed  under  the  principles  of  the  common  law, 
which  principles  controlled  the  liability  of  interstate  carriers 
prior  to  the  passage  of  an  act  of  Congress  on  the  subject.  "While 
some  of  the  arguments  of  Judge  Shiras  might  appear  to  militate 
against  the  conclusion  here  adopted,  he  meant  t&  confine  his 
arguments  to  that  particular  case,  for  we  see  him  holding  in 
the  Van  Patten  Case,  note  \  supra,  that  after  the  passage  of 
the  act  to  regulate  commerce  suits  for  damages  for  an  un- 
reasonable charge  were  cognizable  only  in  the  federal  courts. 

In  another  case,  like  the  Murray  case,  supra,  removed  from 
a  state  court,  but  differing  from  that  case  in  that  it  arose  under 
the  act  to  regulate  commerce,  it  was  held  that  the  state  court 
had  no  jurisdiction."  The  decision  of  the  Supreme  Court  in 
Louisville  &  N.  R.  Co.  v.  Mottley,  211  U.  S.  149,  53  L.  Ed. 
29  Sup.  Ct.  42,  does  not  conflict  with  the  contention  here  made. 
The  plaintiff's  case  rested  solely  on  a  contract,  and  though  the  de- 
fense was  based  upon  the  act  to  regulate  commerce,  that  fact  did 
not  appear  in  plaintiff's  statement  in  his  case.  The  same  can  be 
said  of  Re  Winn,  213  U.  S.  458,  53  L.  Ed.  ,  29  Sup.  Ct. 
See  also  the  decision  of  Circuit  Judge  Taft  in  Toledo,  etc.,  R. 
Co.  V.  Pa.  Co.  (C.  C.)  54  Fed.  730,  19  L.  R.  A.  387;  5  I.  C.  C. 
R.  545,  22  U.  S.  App.  561. 

"It  is  immaterial,"  said  the  learned  judge,  "what  rights  the 
complainant  would  have  had  before  the  passage  of  the  inter- 
state commerce  law.  It  is  sufficient  that  Congress,  in  the  con- 
stitutional exercise  of  power,  has  given  the  positive  sanction  of 


» Swift    V.    Philaflelphia    &    K.    E.       v.  Til.  Cent.  R.   Co.,  80  Fed.  78. 
Co.,  .58  Fed.  858.    See  also  Edmunds 


264  Enforcement  uv  the  Courts  [§200, 

federal  law  to  the  rights  secured  in  the  statute,  and  any  case  in- 
volving the  enforcement  of  those  rights  is  a  case  arising  under 
the  laws  of  the  Ignited  States." 

And  said  Chief  Justice  Marshall  in  Osborn  v.  Bank,  9  Wheat. 
738,  6  L.  Ed.  204 : 

''We  think,  then,  that  when  a  question  to  which  the  judicial 
power  of  the  union  is  extended  by  the  constitution  forms  an  in- 
gredient of  the  original  cause,  it  is  in  the  power  of  Congress 
to  give  the  circuit  courts  jurisdiction  of  that  cause,  although 
other  questions  of  fact  or  law  may  be  involved  in  it." 

See  also  Judge  Speer  in  Tift  v.  Southern  Ry.  Co.,  123  Fed. 
789. 

The  state  courts  have  generally  held  that  they  had  no  juris- 
diction of  causes  of  action  arising  under  the  act.  Two  leading 
cases  on  the  subject  are  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Moore  by  the 
Supreme  Court  of  Texas,  98  Tex.  302,  83  S.  W.  362,  and  Copp 
V.  Louisville  &  N.  R.  Co.  by  the  Supreme  Court  of  Louisiana, 
43  La.  Ann.  511,  9  So.  441,  3  I.  C.  R.  625.  The  reasons  given 
in  the  Copp  Case,  supra,  are  short  and  cogent.     The  court  said: 

"In  the  instant  case  the  right  asserted  by  the  plaintiff  is 
claimed  under  an  act  of  Congress  which  specifies  the  remedy 
for  its  enforcement.  This  circumstance  suffices  to  evidence  that 
Congress  saw  fit  to  give  the  federal  courts  exclusive  jurisdiction, 
the  motive  which  induced  such  legislation  may  have  been,  and 
no  doubt  is,  to  create  one  entire  and  complete  system,  and  pro- 
vide for  the  necessary  uniform  machinery  to  make  it  effective 
on  an  important  and  vital  subject  of  national  interest.  See 
further  Sutherland,  Stat.  Const.  Sec.  399;  Dudley  v.  Mayhew, 
3  N.  Y.  9 ;  The  IMoses  Taylor,  71  U.  S.  4  Wall.  429,  18  L.  Ed. 
397 ;  Martin  v.  Hunter,  14  U.  S.  1  Wheat.  334,  4  L.  Ed.  104 ; 
Ex  parte  McNiel,  80  U.  S.  13  Wall.  236,  20  L.  Ed.  624." 

The  very  full  discussion  of  this  question  by  Mr.  Justice  Brad- 
ley citing  Alexander  Hamilton  in  the  82d  number  of  the  Fed- 
eralist, in  Claflin  v.  Houseman,'"  in  no  way  conflicts  with  our 
conclusion,  for  he  there  recognizes  that  there  is  no  jurisdiction 
in  the  state  courts  where  it  is  "excluded  by  express  provision  or 
by  incompatibility  in  its  exercise  arising  from  the  nature  of  the 
particular  case,"  and  that  the  jurisdiction  of  the  federal  courts 
is  "sometimes  exclusive  by  implication."     In  so  far  as  special 

"93  U.  S.,  3  Otto  130,  23  L.  Ed.   833. 


§  201.]  OF  THE  Act  to  Regulate  Commerce.  265 

remedies  are  prescribed  the  act  to  regulate  commerce  by  express 
enactment  excludes  the  state  courts,  and  in  so  far  as  equitable 
remedies  to  enforce  the  rights  reserved  by  section  twenty-two 
of  the  act,  state  courts  are  excluded  by  implication  and  the  na- 
ture of  the  case.  The  argument  here  made  and  the  conclusion 
reached  is  not  applicable  to  the  rule  of  law  fixing  liability  of 
initial  carriers,  which  rule  is  stated  in  section  twenty  of  the  act 
and  which  rule  will  be  discussed  in  the  next  succeeding  section 
hereof. 

§  201.  The  enforcement  of  the  provision  making  the  initial 
carrier  liable  for  loss  and  damage. — At  common  law  a  carrier 
must  transport  to  the  end  of  its  line,  but  when  the  commodity  is 
delivered  to  the  connecting  carrier  in  good  order,  its  liability 
ceased,  unless  it  contracted  to  deliver  at  the  point  of  final  des- 
tination, and  even  when  such  a  contract  was  made,  by  the  same 
contract  the  carrier  could  limit  its  liability  to  its  o\^^l  line. 
Where  commodities  are  transported  over  several  lines  and  dam- 
age resulted,  the  shipper  was  frequently  luiable  to  prove  which 
particular  carrier  was  liable  for  the  loss  or  injury."  The  last 
connecting  carrier  receiving  goods  "as  in  good  order"  was  pre- 
sumptivel}^  liable  for  the  damage.  This  is  a  statute  in  Georgia." 
To  make  it  possible  for  shippers  to  collect  for  loss  and  damage 
and  at  the  same  time  to  allow  carriers  to  adjust  between  them- 
selves the  loss  so  that  the  innocent  would  not  suffer,  Congress, 
in  the  Hepburn  amendment,  enacted  this  provision : 

"That  any  common  carrier,  railroad,  or  transportation  com- 
pany receiving  property  for  transportation  from  a  point  in  one 
state  to  a  point  in  another  state  shall  issue  a  receipt  or  bill  of 
lading  therefor  and  shall  be  liable  to  the  lawful  holder  thereof 
for  any  loss,  damage,  or  injury  to  such  property  caused  by  it 
or  by  any  common  carrier,  railroad  or  transportation  company 
to  which  such  property  may  be  delivered  or  over  whose  line  or 
lines  such  property  may  pass,  and  no  contract,  receipt,  rule  or 
regulation  shall  exempt  such  common  carrier,  railroad,  or  trans- 
portation company  from  the  liability  hereby  imposed :  Provided, 
that  nothing  in  this  section  shall  deprive  any  holder  of  such 
receipt  or  bill  of  lading  of  any  remedy  or  right  of  action  which 
he  has  under  existing  law." 


"Ilutcheson   on   Carriers,   3d   Ed.,  "Georgia  Code  1895,  §  2298. 

§  225  et  seq. 


2G6  Enforcement  by  the  Courts  [§201. 

In  holding  this  provision  valid,  Judge  Speer  forcibly  and  ac- 
curately points  out  the  evils  it  sought  to  remedy.  Speaking  of 
shipments  across  the  continent,  he  says :  " 

"The  countless  losses  of  such  shipments  and  their  important 
values,  became  an  incalculable  injury  to  the  shippers 
and  a  burden  upon  their  business.  The  failure  to  speedily  ad- 
just such  losses  became  the  chief  contributing  cause  of  this  in- 
jury to  the  shipper.  Official  reserve  and  official  indifference, 
amounting  at  times  to  that  'insolence  of  office,'  the  chief  est  of 
those  'spurns  which  patient  merit  of  the  unworthy  takes,'  often 
greeted  the  efforts  of  business  men  and  others  to  obtain  redress. 
Every  shipper  of  consequence,  every  practicing  attorney  hold- 
ing claims  arising  from  such  delinquencies,  every  judge  trying 
such  claims,  can  readily  recall  the  circumlocution  and  the  con- 
sequent insufferable  delay  in  the  adjustment  of  liability  of  the 
plainest  character.  Each  claim,  it  seems,  must  be  apparently 
scrutinized  often  by  more  than  one  department  of  each  succes- 
sive railroad  extending  from  the  point  of  delivery  to  the  point 
of  destination.  It  did  not  matter  how  many  such  railroads  there 
might  have  been,  how  great  the  distance,  how  long  the  time  con- 
sumed, how  imreasonable  the  delay,  how  injurious  the  loss.  Each 
employe  with  relating  duties  must  at  his  leisure  contemplate 
the  claim  in  every  light  of  which  it  was  capable,  write  the  re- 
sult of  his  discoveries  thereon,  and  forward  it  to  the  agent  of  the 
connecting  line,  or  to  all  of  the  agents  of  each  of  the  connecting 
lines.  In  the  meantime  the  shipper  was  suffering  the  accumu- 
lating injury  resulting  from  the  loss  of  his  goods,  the  interrup- 
tion of  his  business,  the  deprivation  of  interest  on  the  sum  in- 
volved, and  possibly  the  loss  of  other  business  from  the  disap- 
pointed and  exasperated  customer,  attending  the  slow  return  of 
the  now  bullry^  file.  At  length,  after  the  obviously  just  demand 
has  been  leisurely  scrutinized  by  all  the  'Tite  Barnacles'  of  this 
unprecedented  circumlocution,  the  shipper  had  usually  to  con- 
tent himself  with  a  curt  refusal  to  pay  anything.  Happily  for 
him,  however.  Congress  has  opened  the  national  courts  for  his 
claim,  no  matter  how  small  the  amomit,  and,  in  order  to  impart 
some  degree  of  celerity  to  the  mental  or  meditative  activities 
of  the  'Tite  Barnacles'  aforesaid,  the  penalty  of  reasonable  at- 

"Eiversicle    Mills    v.    Atlantic    C.       992. 
L.  K.  Co.,  168  Fed.  987,  990,  991, 


§  201.]  OF  THE  Act  to  Eegulate  Commerce.  267 

torney's  fees,  to  be  fixed  by  the  court,  is  also  granted  by  the 
law." 

Notwithstanding  the  great  ability  of  the  .judge  who  wrote  the 
above  opinion,  it  would  seem  to  be  doubtful  that  attorney's  fees 
are  collectible  under  this  provision.  Section  eight  provides  for 
attorney's  fees  when  damages  are  recovered  for  a  violation  of 
any  of  the  provisions  of  the  act.  The  initial  carrier  liability 
clause  of  section  twenty  merely  makes  the  initial  carrier  liable 
for  "loss,  damage  or  injury"  caused  to  the  property  by  it  or 
any  connecting  carrier.  The  purpose  of  the  provision  was  to 
fix  a  rule  of  law  to  enable  a  shipper  to  recover  damages  when 
his  goods  were  lost  or  injured,  not  to  increase  the  amount  of 
the  recovery.  The  law  also  prevents  a  carrier  from  making 
a  contract  limiting  its  common  law  liability  where  the  loss  is 
''caused  by  it  or  any  connecting  carrier."  It  would  seem  that 
a  carrier  might  yet,  by  contract,  relieve  itself  from  liability  as 
an  insurer,  remaining  liable,  however,  for  its  o^\ti  and  its  con- 
necting carriers'  acts.  This  is  the  opinion  of  Mr.  Commissioner 
Lane  in  his  discussion  of  the  subject,  where  he  says : " 

"The  rule,  roughly  stated,  is  that  a  common  carrier  is  liable 
for  all  losses  not  occasioned  bj^  the  act  of  God  or  the  public 
enemy.  But  the  carrier's  right  to  relieve  itself  to  some  extent 
from  this  complete  responsibility,  by  special  agreement  or  no- 
tice, has  long  been  recognized.  It  may  strip  itself  of  its  in- 
surer's liability  and  remain  responsible  only  for  its  negligence 
and  other  misconduct.  York  Manufacturing  Co.  v.  I.  C.  K.  E. 
Co.,  3  Wall.,  70  U.  S.  107,  18  L.  Ed.  170;  N.  Y.  C.  &  H.  R.  R. 
Co.  V.  Lockwood,  17  Wall.,  84  U.  S.  357,  21  L.  Ed.  627. 

"The  law  on  this  point  is  well  settled,  and  a  careful  study  of 
the  provisions  of  the  Hepburn  act  will  show  that  the  carrier's 
right  in  this  respect  has  not  been  abrogated.  The  law  reads  that 
the  carrier  shall  be  liable  'for  any  loss,  damage,  or  injury  to  such 
property  caused  by  it  *  *  *  and  no  contract,  receipt,  rule, 
or  regulation  shall  exempt  such  common  carrier,  railroad,  or 
transportation  company  from  the  liability  hereby  imposed.* 
The  scope  of  this  prohibition  must  turn  largely  upon  the  con- 
struction to  be  placed  upon  the  word  'caused.'  The  word 
'caused'  is  not  susceptible  of  a  narrow  interpretation — it  is  broad 
enough  to  comprehend  all  losses  due  to  the  carrier's  misconduct, 

"  Re  Released  Rates,  13  I.  C.  C.    R.  550,  552. 


268  Enforcement  uy  the  Courts  [§  201. 

Avhether  positive  or  negative  in  character.  But  it  can  not  pos- 
sibly be  extended  to  cover  losses  due  to  causes  beyond  the  car- 
rier's control.  We  are  necessarily  driven  to  the  conclusion, 
therefore,  that  the  law  places  no  restriction  upon  the  carrier's 
efforts  to  exempt  itself  from  liability  for  losses  which  occur  with- 
out fault  on  its  part.  We  are  of  the  opinion,  in  short,  that  in 
the  absence  of  agreement  or  notice  the  carrier's  liability  is  gov- 
erned by  the  ordinary  common-law  rule ;  but  that  a  stipulation 
for  exemption  from  liability  for  losses  due  to  causes  beyond  the 
carrier's  control  is  open  to  no  legal  objection." 

The  validity  of  the  act  was  sustained  by  Judge  Kogers  in 
Smeltzer  v.  St.  Louis  &  S.  F.  R.  Co.'"  See  also  cases  cited, 
§  659  post. 

This  is  a  law  that  may  be  enforced  either  in  the  state  or  fed- 
eral courts.  This  is  true  because  there  is  nothing  in  the  law 
which  makes  the  exercise  of  jurisdiction  by  state  courts  incom- 
patible with  the  purpose  of  the  clause ;  and  it  can  not  be  implied 
that  Congress  has  given  the  federal  courts  exclusive  jurisdiction 
over  suits  for  damages  arising  out  of  a  breach  of  contract  to 
transport  goods  from  one  state  to  another  merely  because  it 
passed  a  law  making  the  initial  carrier  liable  for  the  acts  of  its 
agents  to  whom  it  delivered  the  goods.  W^here  equality  and  rea- 
sonableness of  rates  are  in  issue,  the  state  courts  could  not  ex- 
ercise jurisdiction  compatibly  with  the  purposes  of  the  act  to 
regulate  commerce.'" 

This  question  is  ably  discussed  by  Judge  Powell,  of  the  court 
of  appeals  of  Georgia,  and  while  his  intimation  that  the  federal 
courts  have  no  jurisdiction  is  probably  incorrect,  his  conclusion 
that  the  state  courts  have  concurrent  jurisdiction  is  supported 
by  the  authorities  and  by  sound  logic.    Judge  Powell  says :  " 

"The  acts  of  Congress  made  in  pursuance  to  the  Constitution 
of  the  United  States  constitute  a  part  of  the  laws  of  this  state 
and  are  binding  on  the  courts  as  such.  The  state  courts  ordi- 
narily have  jurisdiction  to  enforce  rights  and  liabilities  created 
by  congressional  action  where  the  exercise  of  that  jurisdiction 

"158  Fed.   649.  841,  58  S.  E.  197;  Atlantic  C.  L.  R. 

"§  200  ante.  Co.    v.    Henderson,    131    Ga.    75,    61 

"Southern  Pac.   Co.  v.   Crenshaw,  S.    E.    1111;    Southern    Ry.    Co.    v. 

5  Ga.  App.  67.5,  63  S.  E.  865.     See  Frank,    5    Ga.   App.    574,    63    S.    E. 

also  cases  cited,  and  Central  of  Ga.  656. 

Ry.   Co.  V.  City  Mills  Co.,  128  Ga. 


§  202.]  OF  THE  Act  to  Regulate  Commerce.  269 

would  not  conflict  with  the  plans  and  purposes  manifested  by 
the  nature  of  the  terms  of  the  federal  enactment;  and  this  is 
true  whether  the  statute  creating  the  right  is  as  to  the  common 
law  declaratory  or  derogatory." 

§  202.  Jurisdiction  of  the  courts  of  the  United  States  to  com- 
pel the  attendance  of  witnesses  before  the  commission  and  enforce 
obedience  to  act. — Upon  the  request  of  the  commission,  it  shall 
be  the  duty  of  any  district  attorney  of  the  United  States  to 
whom  the  commission  may  apply  to  institute  in  the  proper  court 
and  to  prosecute  under  the  direction  of  the  Attorney-General  of 
the  United  States  all  necessary  proceedings  for  the  enforcement 
of  the  provisions  of  this  act.  In  case  of  disobedience  of  the  sub- 
poena of  the  commission,  it  may  invoke  the  aid  of  any  court  of 
the  United  States  in  requiring  the  attendance  and  testimony  of 
witnesses  and  the  production  of  books,  papers,  and  documents 
under  the  provisions  of  this  section.  And  any  of  the  circuit 
courts  of  the  United  States  within  the  jurisdiction  of  which  such 
inquiry  is  carried  on  may,  in  case  of  contumacy  or  refusal  to 
obey  a  subpoena  issued  to  any  common  carrier  subject  to  the 
provisions  of  this  act,  or  other  person,  issue  an  order  requiring 
such  common  carrier  or  other  person  to  appear  before  said  com- 
mission and  produce  books  and  papers  if  so  ordered  and  give 
evidence  touching  the  matter  in  question;  and  any  failure  to 
obey  such  order  of  the  court  may  be  punished  by  such  court  as 
a  contempt  thereof.  Forfeitures  for  violations  of  the  act  are 
recoverable  in  a  civil  suit,  in  the  name  of  the  United  States, 
brought  in  the  district  where  the  carrier  has  its  principal  of- 
fice, or  through  which  its  road  runs.  Circuit  and  district  courts 
of  the  United  States  have  jurisdiction  upon  the  relation  of  any 
person,  firm,  or  corporation  alleging  a  violation  of  the  provisions 
of  the  act  that  prevents  the  relator  from  having  interstate  traf- 
fic moved  by  said  common  carrier  at  the  same  rates  as  are 
charged,  or  upon  terms  or  conditions  as  favorable  as  those  given 
by  said  common  carrier  for  like  traffic  under  similar  conditions 
to  any  other  shipper,  to  issue  a  writ  or  writs  of  mandamus 
against  said  common  carrier,  commanding  such  common  carrier 
to  move  and  transport  the  traffic,  or  to  furnish  cars  or  other 
facilities  for  transportation  for  the  party  applying  for  the  writ. 
The  writ  of  mandamus  is  cumulative  and  may  issue  upon  sucti 
terms  as  the  court  may  prescribe,  notwithstanding  there  may  be 


270  Enforcement  by  the  Courts  [§  203. 

undetermined  questions  of  fact  as  to  the  proper  compensation 
to  the  carrier.    Discrimination  may  be  summarily  enjoined. 

These  provisions  are  discussed  elsewhere  and  such  discussion 
need  not  be  repeated.'* 

The  penal  provisions  of  tlie  act  are,  of  course,  enforcible  only 
in  the  federal  courts. 

§  203.  Jurisdiction  of  the  courts  to  enforce  orders  of  the  com- 
mission.— The  orders  of  the  connuission  may  be  classified,  for 
the  purposes  of  this  section,  as  of  four  general  kinds: 

(1)  Purely  administrative  orders,  such  as  prescribing  forms 
of  schedules,  forms  of  reports  and  systems  of  accounting,  orders 
requiring  the  attendance  of  witnesses,  production  of  papers,  and 
other  similar  administrative  orders. 

(2)  Orders  requiring  the  carriers  to  desist  from  some  partic- 
ular act  or  practice  fomid  by  the  commission  to  be  in  violation 
of  the  act. 

(3)  Orders  for  reparation. 

(4)  Orders  prescribing  a  rule,  rate  or  practice  which  the  car- 
rier is  enjoined  to  obey  for  the  future. 

The  effect  of  the  orders  of  the  commission  with  reference  to 
the  attendance  of  witnesses  has  already  been  discussed.  The 
purely  administrative  orders  of  the  commission,  such  as  forms 
of  tariff  schedules,  forms  of  accounting  and  similar  orders,  are 
not  of  that  character  likely  to  reach  the  courts.  "When  adminis- 
trative orders  are  such  as  to  require  the  action  of  the  courts, 
they  usually  fall  within  and  would  be  governed  by  the  same 
principles  of  law  as  those  mentioned  in  paragraph  two  of  the 
above  classification. 

Orders  contemplated  in  paragraph  four  of  this  classification 
could  not  be  made  by  the  commission  prior  to  the  Hepburn 
amendment. 

Prior  to  the  Hepburn  act  the  orders  of  the  commission  were 
not  effective  unless  voluntarily  obeyed  by  the  carrier,  they  are 
now  binding  upon  carriers  unless  set  aside  by  the  courts.  It 
is,  however,  probably  true  that  if  the  order  of  the  commission 
is  void,  though  regularly  made  and  duly  served,  carriers  would 
incur  no  penalties  in  its  disobedience.  It  is  also  provided  that 
the  courts  may,  since  the  passage  of  the  Hepburn  act,  enforce 
obedience  to  the  orders  of  the  commission.     The  effect  of  orders 

"  Ante  §§  160,  161,  post  525,  535,  551,  552,  553,  567,  574,  580. 


§  204.]  OF  THE  Act  to  Regulate  Commerce.  271 

under  divisions  two,  three  and  four,  supra,  will  be  separately 
discussed  in  the  next  succeeding  sections. 

§  204.  The  effect  to  be  given  by  courts  to  orders  of  the  com- 
mission requiring  carriers  to  desist  from  some  particular  practice. 
— In  addition  to  penalties  prescribed  for  violations  of  the  act 
which  are  enforcible  only  in  the  courts  of  the  United  States,  the 
commission  is  authorized  and  required  to  enforce  its  provisions. 
To  this  end  it  may  inquire  into  the  management  of  the  business 
of  all  common  carriers  and  may  investigate  inquiries  on  its  own 
motion.  In  addition  to  the  power  to  prescribe  what  regulation 
or  practice  in  respect  to  transportation  shall  be  observed  for  the 
future,  it  may  make  an  order  that  a  carrier  shall  cease  and  desist 
from  any  violation  of  the  provisions  of  the  act.  The  effect  of  the 
act  of  the  commission  prescribing  a  rule  or  regulation  for  the 
future  will  be  subsequently  discussed.  When  it  is  decided  that 
any  regulations  or  practices  whatsoever  of  such  carrier  or  car- 
riers affecting  such  rates  are  unjust  or  unreasonable,  or  unjustly 
discriminatory,  or  unduly  preferential  or  prejudicial,  or  other- 
\vise  in  violation  of  any  of  the  provisions  of  this  act,  the  com- 
mission may  make  an  order  that  the  carrier  shall  cease  and  de- 
sist from  such  violation. 

The  statute,  it  is  seen,  limits  the  power  of  the  commission  to 
order  carriers  to  ''cease  and  desist"  from  violations  of  the  act. 
If,  therefore,  a  carrier  were  ordered  to  cease  and  desist  from 
some  act  not  violative  of  the  act,  it  would  seem  that  the  order 
would  be  ineffective.  This,  however,  does  not  leave  the  com- 
mission without  power  in  this  respect.  Discrimination,  when 
imjust,  is  prohibited.  Some  tribunal  must  of  necessity  determine 
whether  or  not  a  particular  practice  is  unjust  discrimination. 
The  courts,  in  suits  brought  under  section  twenty-three  of  the 
act  to  regulate  commerce,  or  section  two  of  the  Elldns  act,  may 
determine  this  question,  at  least  under  section  two,  without  the 
aid  of  the  commission.  Post  §§  574,  580.  The  commission  may 
determine  this  and  other  similar  questions  affecting  violations 
of  the  act  and  when  it  does  so  and  the  courts  are  called  upon 
to  enforce  its  orders,  the  question  arises  as  to  what  effect  shall 
be  given  by  the  courts  to  such  orders. 

Are  such  orders  legislative  or  administrative?  On  the  answer 
to  this  question  would  seem  to  depend,  to  some  extent,  the  force 
of  the  orders  when  called  in  question  in  the  courts.  They  are 
pot  orders  fixing  rules  for  the  future,  except  so  far  as  incidental- 


2(2  Enforcement  by  the  Cot^rts  [§204. 

ly  an  order  not  to  do  a  thing  somewhat  determines  conduct  for 
the  future.  Tested  by  the  rule  annoimced  by  Mr.  Justice  Holmes 
in  the  Virginia  Kate  Case,"  that  ''the  establishment  of  a  rate 
is  the  making  of  a  rule  for  the  future,  and  therefore  is  an  act 
legislative,  not  judicial  in  kind,"  an  order  of  the  com- 
mission merely  directing  a  discontinuance  of  a  particular 
practice  would  fall  within  the  administrative  power  of 
that  tribunal.  Prior  to  the  Hepburn  amendment  all 
orders  of  the  commission  had  to  be  enforced  through  the  courts, 
and  all  its  orders  were  made  prima  facie  legal.  This  amendment 
made  all  orders,  except  reparation  orders,  self  executory,  unless 
enjoined  or  set  aside  by  the  courts,  and  the  prima  facie  rule  was 
not  applied  to  any  but  reparation  orders.  The  effect  of  this 
amendment  on  orders  fixing  rules  for  the  future  will  be  dis- 
cussed in  the  further  course  of  this  chapter.  The  orders  here 
under  discussion  being  administrative  would  seem  to  be  legal 
or  not  as  they  were  or  were  not  authorized  by  the  act.  Whether 
a  particular  rule  or  practice  violates  the  act  depends  upon  the 
effect  of  such  rule  or  practice.  What  may  be  its  effect  is  a  ques- 
tion of  fact.  AVhen  the  commission,  after  full  hearing,  de- 
termines the  question  of  fact,  what  force  will  be  given  to  that 
determination  by  the  courts.  Prior  to  the  amended  act  the  com- 
mission having  ordered  a  common  carrier  to  "cease  and  desist 
from  refusing  to  carry  common  soap  in  car-load  lots  at  sixth- 
class  rates,  and  from  refusing  to  carry  common  soap  in  less 
than  car-load  lots  at  fourth-class  rates,"  such  order  was  sus- 
tained by  the  Supreme  Court,  which  court  in  sustaining  the 
order  said :  ^^ 

"The  statute  gives  prima  facie  effect  to  the  findings  of  the 
commission,  and,  when  those  findings  are  concurred  in  by  the 
circuit  court,  we  think  they  should  not  be  interfered  with  unless 
the  record  establishes  that  clear  and  unmistakable  error  has 
been  committed.  See  Cincinnati,  N.  0.  &  T.  P.  R.  Co.  v.  Inter- 
state Commerce  Commission.  162  U.  S.  184,  194,  40  L.  Ed.  935, 
938,  5  Inters.  Com.  Rep.  391.  16  Sup.  Ct.  Rep.  700;  Louisville 
&  N.  R.  Co.  v.  Behlmer,  175  U.  S.  648,  672,  44  L.  Ed.  309,  318, 
20  Sup.  Ct.  Rep.  209." 

"•211   U.   S.   210,   226,  53   L.   Ed.       Int.  Com.  Com.,  206  U.  S.  142,  14.5, 
,  29  Sup.  Ct.  67.  154,   51  L.   Ed.   995,  997,   1000,   2? 

''Cincinnati,  H.  &  D.  E7,  Co,  v.      Sup.  Ct.  648. 


§  204.]  OF  THE  Act  to  Regulate  Commerce.  273 

The  purpose  of  the  Hepburn  amendment  was  not  to  lessen, 
but  to  increase,  the  power  of  the  commission  and  its  administra- 
tive orders  are  now  effective  unless  enjoined  or  set  aside  by  the 
courts,  and  when  disobeyed  and  suits  are  brought  to  enforce 
them  if  they  are  within  the  power  of  the  commission  to  pass  and 
are  ''regularly  made  and  duly  served,"  the  courts  would,  at 
least,  regard  the  findings  of  fact  upon  which  the  order  was  based 
as  being  prima  facie  true,  and  the  same  effect  would  be  given 
such  orders  when  suit  was  brought  by  the  carrier  to  enjoin  or 
set  them  aside. 

The  case  of  New  York  C.  &  H.  E.  R.  Co.  v.  Int.  Com.  Com.,=' 
is  a  very  interesting  and  instructive  one  on  this  point.  The 
opinion  was  written  by  Judge  Noyes,  who,  as  an  author,  has 
shoT^Ti  himself  to  have  a  comprehensive  grasp  of  questions  affect- 
ing carriers.  The  opinion  is  concurred  in  by  Judge  Lacombe, 
Judge  Ward  dissenting.  The  case  arose  on  the  application  of 
the  carriers  to  set  aside  and  enjoin  an  order  of  the  commission 
requiring  the  carriers  to  cease  and  desist  "from  according  to 
flour  milled  in  transit  at  interior  points  a  lower  rate  for  ex- 
port than  is  imposed  upon  the  grain  of  the  complainant  at  New 
York  City,  which  is  subsequently  ground  into  flour  and  other 
grain  products  and  exported;  but  this  order  is  made  upon  con- 
dition that  said  defendants  establish  the  necessary  regulations 
to  make  certain  that  the  grain  upon  which  the  export  flour  rate 
is  applied  is  actually  exported  as  flour  or  other  grain  products, 
for  which  defendants  may  impose  a  proper  charge  to  cover  the 
cost  of  executing  such  regulations."  The  first  ground  of  objec- 
tion to  the  validity  of  the  order  was  that  it  did  not  specify  how 
long  it  was  to  remain  in  force,  the  second  ^as  that  it  did  not  fix 
the  just  and  reasonable  maximum  charge  to  be  observed  in  the 
future.  Each  of  these  grounds  were  overuled.  Discussing  the 
second  objection  the  court  says : 

'If  the  power  conferred  upon  the  commission  were  simply 
and  alone  to  prescribe  maximum  rates,  there  would  be  much 
force  in  the  complainants'  contention.  There  is  a  marked  dis- 
tinction between  that  poAvcr  and  the  power  to  fix  minimum 
or  absolute  rates.  There  is  still  greater  distinction  be- 
tween it  and  the  power  to  fix  relative  rates;  for, 
strictly  speaking,  power  to  prescribe  the  relations  which  shall 

*^]68  Fed.  131. 


274  Enforcement  by  the  Courts  [§204. 

exist  between  charges  is  not  power  to  fix  them  at  all.  It  is  nec- 
essary to  look  further  than  to  the  power  to  prescribe  maximum 
rates  to  find  authority  for  the  order  in  question.  This  order  at- 
tempted to  remove  the  discrimination  against  the  milling  com- 
pany. It  prescribed,  in  substance,  that  the  charges  against  it 
should  be  the  same  as  those  charged  other  shippers  for  services 
similar  in  their  nature.  It  did  not  prescribe  how  the  charges 
should  be  ec[ualized.  Raising  the  rate  to  the  western  shipper 
Avould  have  complied  with  the  order  as  well  as  lowering  the  rate 
to  the  milling  company.  The  end  to  be  attained  was  the  re- 
moval of  the  discrimination.  Now,  the  removal  of  discrimina- 
tions is  one  of  the  primary  purposes  of  the  act  to  regulate  com- 
merce, its  supplements  and  amendments.  jMany  provisions  are 
directed  to  that  end.  Consequently  it  is  not  to  the  specific 
power  to  prescribe  maximum  rates,  but  to  the  broad  powers,  ap. 
plicable  in  the  case  of  violations  of  the  act  by  unjust  discrimina- 
tions, conferred  by  section  12,  'to  execute  and  enforce  the  pro- 
visions of  this  act,'  and  by  section  15,  'to  make  an  order  that 
the  carrier  shall  cease  and  desist  from  such  violation  to  the  ex- 
tent to  which  the  commission  find  the  same  to  exist,'  that  resort 
must  be  had.  The  complainants  apparently  do  not  question 
the  poAver  of  the  commission  to  order  them  to  desist  from  the 
unjust  discrimination,  but  they  contend  that  the  commission  can 
not  stop  there — ^that  such  determination  is  merely  antecedent  it,o 
the  fixing  of  a  new  maximum  rate.  If  this  be  so,  the  act  loses 
much  of  its  effectiveness.  Discriminations  are  as  well  accom- 
plished by  low^ering  as  by  raising  rates.  If  the  commission  had 
prescribed  in  the  present  order  as  the  maximum  rate  the  pres- 
ent charge  to  the  w^estem  millers,  the  same  condition  would  be 
brought  about  by  making  a  new  and  lower  rate  to  them.  We 
think  any  such  construction  of  the  act  W'Ould  fail  to  give  due 
effect  to  its  provisions,  and  that  the  powers  conferred  by  section 
12  and  15  furnished  the  commission  authority  to  make  the  order 
in  question,  and  did  not  require  them  to  go  further." 

The  next  contention  was  that  the  order  was  invalid  because 
it  failed  to  correct  the  most  serious  discrimination  found  by  the 
commission — that  in  favor  of  foreign  millers.  To  this  conten- 
tion the  court  answered:  "That  the  order  was  not  rendered 
invalid  by  being  less  comprehensive  than  it  might  have  been. 
If  it  removed  one  discrimination  it  was  not  inoperative  because 


§204.]  OF  THE  Act  TO  Regulate  Commerce.  275 

it  failed  to  remove  others.  It  was  lawful  as  far  as  it  went,  even 
if  it  did  not  go  as  far  as  it  might." 

It  was  next  insisted  that  the  order  is  invalid  because  it  re- 
quires the  complainant  to  establish  regulations  and  practices 
not  connected  with  interstate  transportation.  It  was  argued  that 
this  contention  was  unsound,  but  the  court  said:  ''But  we  are 
not  called  upon  to  determine  the  precise  question  thus  presented 
*     *     *     *     the  order  relates  solely  to  transportation." 

It  was  next  urged  that  the  order  was  invalid  because  not  con- 
fined to  the  issues  raised.    Upon  this  objection  the  court  said : 

''The  milling  company  specifically  asked  the  commission  to 
order  the  carrier  to  fix  the  rate  upon  grain  which  it  shipped 
from  Chicago  points  to  New  York  harbor  at  the  same  amoimt  as 
was  fixed  upon  export  grain.  The  commission  did  not  grant  this 
relief,  but,  instead,  gave  the  milling  company  the  benefit  of  the 
rate  upon  flour  milled  in  transit  and  exported.  But  as  the  peti- 
tion of  the  milling  company  also  prayed  for  further  and  general 
relief,  we  should  find  no  difficulty  in  sustaining  the  order  not- 
withstanding this  variance,  if  there  were  any  facts  in  the  peti- 
tion concerning  the  milling  in  transit  rate  or  any  showing  that 
the  milling  company  should  be  placed  upon  the  same  basis  as 
those  enjoying  it.  But  the  petition  contains  no  reference  to 
such  privilege.  Indeed,  the  complaint  seems  to  be  regarding 
rates  enjoyed  by  millers  at  Chicago  and  west  thereof,  instead  of 
by  those  located  on  the  carrier's  lines  east  of  Chicago  and  en- 
joying the  milling  in  transit  privilege.  If  this  order  were  a 
judgment  of  a  court,  we  should  without  hesitation  say  that  the 
facts  alleged  in  the  petition  did  not  support  it.  The  Interstate 
Commerce  Commission,  is,  however,  an  administrative  tribunal 
dealing  with  practical  problems.  So  long  as  the  parties  af- 
fected by  its  orders  appear  and  are  fully  heard,  we  think  it 
would  be  most  unfortimate  to  deny  its  power  to  grant  such 
relief  as  the  facts  shoAvn  upon  the  investigation  should  call  for, 
even  though  such  facts  might  be  presented  by  evidence  techni- 
cally outside  the  issues  raised.  Notwithstanding,  therefore,  that 
the  commission  has  established  rules  of  practice  analogous  to 
those  in  courts,  notwithstanding  that  its  rules  even  provide  that 
hearings  shall  be  had  upon  issue  joined,  we  are  of  the  opinion 
tliat  the  strict  rules  of  pleading  should  not  be  held  applicable 
to  it.  Before  we  declare  an  order  of  the  connin'ssion  invalid  as 
being  outside  the  issues,  we  think  that  we  should  be  satisfied  that 


2/6  Enforcement  by  the  Courts  [§204. 

it  is  outside  the  issues  actually  presented  to  the  commission  and 
upon  which  the  parties  were  heard.  We  have,  therefore,  thought 
it  our  duty  to  examine  the  evidence  and  consider  the  claims  of 
the  parties  made  upon  the  hearing  before  the  commission. 
Through  such  examination  Ave  find  that  the  milling  company  and 
the  carriers  appeared  before  the  commission,  and  that  the  vari- 
ous phases  of  the  discriminations  claimed  to  exist  against  the 
milling  company  were  fully  inquired  into,  including  that  claimed 
to  exist  in  favor  of  interior  millers  enjoying  the  milling  in  tran- 
sit privilege.  As  the  hearing  progressed,  its  scope  apparently 
widened,  and  at  its  conclusion  we  are  satisfied  that  the  real  ques- 
tion before  the  commission  in  the  minds  of  all  the  parties  was 
whether  it  was  proper  and  practicable  to  afford  relief  like  that 
granted  by  the  order.  Indeed,  we  have  no  doubt  that  should  we 
declare  this  order  invalid,  and  a  new  petition  should  be  filed,  the 
inquiry'  would  be  along  the  lines  of  the  hearing  already  had, 
with,  presumably,  the  same  result.  We  conclude,  therefore,  thut, 
while  the  order  may  have  been  technically  outside  the  issues 
raised  by  the  pleadings,  it  was  still  germane  to  the  subject- 
matter  before  the  commission,  and  should  not  be  declared  in- 
valid. 

'^That  which  has  just  been  said  is  also  applicable  to  the  con- 
tention of  the  complainants  that  the  order  is  invalid  because, 
while  the  milling  company  made  no  complaint  with  respect  to 
the  grain  product  rate,  the  order  gives  it  the  benefit  of  the  lower 
flour  rate  upon  all  its  grain  products.  The  whole  subject  was 
fully  presented  to  the  commission.  If  there  was  error  or  inad- 
vertence in  according  to  all  the  milling  company's  products  the 
flour  rate,  application  might  perhaps  be  made  to  the  commis- 
sion to  correct  it.  But  we  cannot  hold  as  a  matter  of  law  that 
the  order  was  rendered  invalid  thereby." 

The  opinion  concludes  with  the  last  contention  of  the  carriers 
as  follows: 

"The  final  contention  of  the  complainants  is  that  it  is  im- 
possible as  a  practical  matter  to  comply  with  the  order,  and  that 
it  should  be  set  aside  as  unenforceable.  This  objection  is  not 
strictly  a  legal  one,  but  involves  the  reasonableness  of  the  order. 
We  shall  not  enter  into  a  full  examination  of  it  upon  this  pre- 
liminary application.  Indeed,  the  extent  to  which  this  court 
imder  the  Hepburn  amendment  may  inquire  into  the  mere  rea- 
sonableness of  orders  made  by  the  commission  is  a  most  serious 


§  205.]  OF  THE  Act  to  Regulate  Commerce.  277 

question.  Section  15  provides  that  orders  of  the  commission 
shall  take  effect  and  remain  in  force  a  prescribed  time,  unless 
'suspended  or  set  aside  by  a  court  of  competent  jurisdiction.' 
Under  one  possible  construction  of  this  provision,  a  court  could 
only  set  aside  an  order  when  it  infringed  upon  a  constitutional 
right  of  the  carrier,  or  failed  to  comply  with  the  provisions  of 
the  statute.  The  objections  to  the  validity  of  the  present  order 
which  have  already  been  examined  illustrate  these  questions 
which  the  court  undoubtedlj^  has  power  to  pass  upon.  On  the 
other  hand,  under  another  possible  construction  of  Ihe  provi- 
sion, the  court  has  power  to  pass  upon  the  reasonableness  of  the 
orders  of  the  commission  upon  their  merits.  AYe  notice  a  trend 
in  the  decisions  toward  the  latter  construction,  but  we  deem  it 
inexpedient  to  express  any  opinion  in  the  matter  until  after  final 
hearing.  For  the  present  it  is  sufficient  to  say  that,  assuming 
that  we  have  the  broad  power  of  revision,  we  are  not  now  satis- 
fied from  an  examination  of  the  moving  papers  that  the  order  is 
unreasonable  and  impracticable.  Certainly  we  think  it  is  not  so 
clearly  impracticable  that  its  enforcement  should  be  suspended 
pending  suit  and  without  a  trial  of  its  working. 

"The  complainants  contend  that  a  preliminary  injunction 
should  be  granted  because  they  would  suffer  irreparable  damage 
if  the  order  should  be  put  into  effect  and  should  subsequently 
be  held  invalid.  But  we  are  unable  to  see  how  the  damages  to 
the  carriers  in  that  contingency  would  be  any  more  irreparable 
than  would  be  those  of  the  milling  company  in  case  the  order 
should  be  suspended,  and  should  subsequently  be  held  valid. 

"The  application  for  a  preliminary  injunction  is  denied." 

In  this  case  the  court  declines  to  pass  upon  the  reasonableness 
of  the  order,  but  did  refuse  to  temporarily  enjoin  it,  it  not  being 
"clearly  impracticable."  The  whole  opinion  is  based  upon  the 
theory,  which  is  the  only  one  consistent  with  the  purposes  of 
the  act,  that  unless  the  carriers  can  clearly  and  unquestionably 
show  an  order  of  the  commission  to  be  illegal  its  validity  will 
be  sustained. 

§  205.  Orders  of  reparation.  Effect  given  to  by  courts. — In 
the  Abilene  Case"  the  Supreme  Court  held  that  damages  could 
not  be  recovered  in  a  state  court  for  the  exaction  of  an  unrea- 


"^  Texas  &  Pac.  Ey.  Co.  v.  Abilene       L.  Ed.  .5.5.3,  27  Sup.  Ct.  350. 
Cotton   Oil   Co.,   204  U.   S.   42G,  51 


278  Enforcement  by  the  Courts  [§  205, 

sonable  rate  on  interstate  transportation,  where  the  rate  charged 
was  fixed  in  a  schedule  of  rates  duly  filed  with  the  Interstate 
Commerce  Commission.  In  that  ease  there  had  been  no  prior  ac- 
tion by  the  commission,  and  the  argument  there  used  would 
apply,  though  probably  with  somewhat  less  force  had  the  suit 
been  brought  in  a  federal  court.  It  may  now  be  stated  as 
a  rule  that  reparation  for  illegal  rates  must  be  applied  for  first 
to  the  Interstate  Commerce  Commission.  Whether  or  not  a 
shipper's  right  to  trade  could  be  taken  away  without  any  right 
to  apply  to  the  courts  by  the  refusal  of  the  commission  to  declare 
a  rate  illegal  has  not  been  determined,  though  it  is  clear  that 
shippers  must  first  apply  to  ^he  commission  before  sueing  in  the 
courts  for  damages. 

Section  eight  of  the  act  to  regulate  commerce  gives  persons  in- 
jured by  a  violation  of  the  act  the  right  to  recover  the  full 
amount  of  damages  sustained  in  consequence  of  any  such  viola- 
tion of  the  provisions  of  this  act,  together  with  a  reasonable 
counsel  or  attorney's  fee,  to  be  fixed  by  the  court  in  every  ease 
of  recovery.  Complaint  should  be  made  to  the  commission, 
which  may,  after  hearing  and  after  a  determination  that  the 
complainant  is  entitled  thereto,  make  an  order  directing  the  car- 
rier to  pay  to  the  complainant  the  sum  to  which  he  is  entitled 
on  or  before  a  day  named.  If  a  carrier  does  not  comply  with  an 
order  for  the  payment  of  money  within  the  time  limit  in  such 
order,  the  complainant,  or  any  person  for  whose  benefit  such 
order  was  made,  may  file  in  the  circuit  court  of  the  United 
States  for  the  district  in  which  he  resides  or  in  which  is  located 
the  principal  operating  office  of  the  carrier,  or  through  which 
the  road  of  the  carrier  runs,  a  petition  setting  forth  briefly  the 
causes  for  which  he  claims  damages,  and  the  order  of  the  com- 
mission in  the  premises.  Such  suit  shall  proceed  in  all  respects 
like  other  civil  suits  for  damages,  except  that  on  the  trial  of 
such  suit  the  findings  and  order  of  the  commission  shall  be  prima 
facie  evidence  of  the  facts  therein  stated,  and  except  that  the 
petitioner  shall  not  be  liable  for  costs  in  the  circuit  court  nor 
for  costs  at  any  subsequent  stage  of  the  proceedings  unless  they 
accrue  upon  his  appeal.  If  the  petitioner  shall  finally  prevail 
he  shall  be  allowed  a  reasonable  attornej-'s  fee,  to  be  taxed  and 
collected  as  a  part  of  the  costs  of  the  suit.  The  present  law  with 
reference  to  the  subject  is  in  legal  effect  the  same  as  that  prior 
to  the  Hepburn  amendment  and  makes  the  order  "prima  facie 


§  205.]  OF  THE  Act  to  Regulate  Commerce.  •        279 

evidence  of  the  facts  therein  stated."  "What  is  meant  by  this 
is  stated  by  the  Supreme  Court  in  111.  Cent.  R.  Co.  v.  Int.  Com. 
Com.,"^  as  follows: 

"The  findings  of  the  commission  are  made  by  law  prima  facie 
true.  This  court  has  ascribed  to  them  the  strength  due  to  the 
judgments  of  a  tribunal  appointed  by  law  and  informed  by  ex- 
perience. Louisville  &  N.  R.  Co.  v.  Behlmer,  175  U.  S.  648,  44 
L.  Ed.  809,  20  Sup.  Ct.  Rep.  209;  East  Tennessee,  V.  &  G.  R. 
Co.  V.  Interstate  Commerce  Commission,  181  U.  S.  1,  27,  45  L. 
Ed.  719,  729,  21  Sup.  Ct.  Rep.  516.  And,  in  any  special  case  of 
conflicting  evidence,  a  probative  force  must  be  attributed  to  the 
findings  of  the  commission,  which,  in  addition  to  'knowledge  of 
conditions,  of  environment,  and  of  transportation  relations,'  has 
had  the  witnesses  before  it  and  has  been  able  to  judge  of  them 
and  their  manner  of  testifying." 

If  the  commission  rejects  a  legal  principle  applicable  to  the 
facts  of  the  complaint,  the  courts  would  refuse  to  enforce  its 
order  and  refer  the  matter  back  to  the  commission  to  determine 
the  facts  upon  the  law  announced  b.y  the  court.  This  is  illus- 
trated by  the  cases  of  Texas  &  Pac.  Ry.  Co.  v.  Int.  Com.  Com., 
162  U.  S.  197,  40  L.  Ed.  940,  5  I.  C.  R.  405,  16  Sup.  Ct.  666; 
Int.  Com.  Com.  v.  Alabama  M.  R.  Co.,  168  U.  S.  144,  42  L.  Ed. 
414,  18  Sup.  Ct.  45;  Louisville  &  N.  R.  Co.  v.  Behlmer,  supra. 
Of  these  cases  the  Supreme  Court  in  the  Illinois  Central  case, 
supra,  says : 

"In  all  these  cases,  therefore,  there  was  a  single,  distinct,  and 
dominant  proposition  of  law  which  the  commission  had  rejected, 
and  the  exact  influence  of  which,  in  its  decisions,  could  be  esti- 
mated. Indeed,  they  were  mere  constructions  of  the  statute,  the 
delegation  of  the  commission's  duties  and  power." 

It  would  seem,  therefore,  that  when  the  commission  follows 
the  authority  given  in  the  statute,  the  power  of  attorney  under 
which  it  acts,  the  effect  given  its  findings  should  be  those  stated 
in  Cincinnati,  H.  &  D.  R.  Co.  v.  Int.  Com.  Com.,  where  the 
Supreme  Court  says :  ^ 

"The  statute  gives  prima  facie  effect  to  the  findings  of  the 
commission,  and,  when  those  findings  are  concurred  in  by  the 


^Tll.  Cent.  R.  Co.  v.  Int.  Com.  ^'Cincinnati,  IT.  &  D.  R.  Co.  v. 
Com.,  206  U.  S.  441,  51  L.  Ed.  1128,  Tut.  Com.  Com.,  206  U.  S.  142,  51 
27  Sup.  Ct.  700.  L.  Ed.  995,  27  Sup.  Ct.  648. 


280  Force  of  Orders  op  Commission  [§  206. 

circuit  court,  Ave  think  they  should  not  be  interfered  with  unless 
the  record  establishes  that  clear  and  unmistakable  error  has  been 
committed. ' ' 

In  a  recent  case  decided  by  the  Supreme  Court "  the  court 
had  under  consideration  an  order  of  the  commission  in  which 
that  body  held  that  a  carrier  could  receive  only  the  actual  cost 
for  a  service  and  expense  in  stopping  goods  in  transit.  The 
Supreme  Court  held,  as  a  matter  of  law,  that  the  carrier  was 
entitled  to  some  profit  for  this  service  and  remanded  the  cause 
"with  instructions  to  send  the  matter  back  to  the  commerce 
commission  for  further  investigation  and  report." 

§  20G.  The  force  of  the  cominissioii's  orders  fixing  rates,  rules, 
and  practices  to  be  observed  in  the  future. —  (I)  The  Statute — 
Under  the  old  law  the  commission  had  no  power  to  fix  rates  or 
prescribe  practices  for  the  future  guidance  of  carriers  subject  to 
its  jurisdiction.  "What  orders  it  could  make  under  that  law  had 
to  be  enforced  by  suits  in  the  circuit  and  district  courts,  and  on 
the  hearings  of  such  suits  all  reports  of  the  commission  upon 
which  such  suits  were  brought  were  made  "prima  facie  evidence 
of  the  matters  therein  stated."  Under  that  law  the  commis- 
sion's report  was  not  a  "rule  of  action"  but  a  finding  of  facts. 
The  Hepburn  amendment  gave  the  commission  power  to  make 
rates,  to  legislate  for  the  future,  it  did  not  take  away  its  ad- 
ministrative power  to  make  findings  of  fact  in  certain  cases. 
As  an  illustration,  its  power  to  award  reparation,  in  which  cases 
the  commission's  findings  of  fact  are  made  by  the  amendment, 
just  as  under  the  old  law,  prima  facie  true.  In  reparation  cases, 
both  before  and  after  the  amendment,  it  is  expressly  provided 
that  the  order  therefor  must  be  enforced  in  the  courts.  When, 
however,  the  legislative  functions  of  the  commission  are  exer- 
cised, the  order  becomes  effective  without  the  aid  of  the  courts. 
Nothing  is  said  in  the  statute  about  such  orders  being  prima 
facie  correct,  nor  is  the  commission  compelled  to  file  its  findings 
of  fact  except  in  cases  in  which  an  award  is  made.  See  ante 
§§  163,  164,  165,  and  post  538  to  542,  inclusive.  In  considering 
this  question  it  is  w^ell  to  keep  in  view  the  particular  language  of 
the  statute.  Section  16  of  the  old  law  provided  that  when  any 
common  carrier  refused  or  neglected  to  obey  any  lawful  order 

"  Southern   Ky.    Co.   v.    St.   Louis  ,         Sup.  Ct. 

Hay  Co.,  214  U.  S.  297,  53  L.  Ed. 


§  206.]  Fixing  Rates,  Etc.,  for  the  Future.  281 

of  the  commission,  suit  could  be  brought  thereon,  and  on  such 
hearing  the  report  of  the  commission  was  'prima  facie  evidence  of 
the  matters  therein  stated.  Section  14  of  the  present  law  pro- 
vides : 

"Whenever  an  investigation  shall  be  made  by  said  commission, 
it  shall  be  its  duty  to  make  a  report  in  writing  in  respect  thereto, 
which  shall  state  the  conclusions  of  the  commission,  together 
with  its  decision,  order,  or  requirement  in  the  premises ;  and  in 
case  damages  are  awarded  such  report  shall  include  the  find- 
ings of  fact  on  which  the  award  is  made. ' ' 

Section  15  provides: 

''That  the  commission  is  authorized  and  empowered,  and  it 
shall  be  its  duty,  whenever,  after  full  hearing  upon  a  complaint 
made  as  provided  in  section  thirteen  of  this  act,  or  upon  com- 
plaint of  any  common  carrier,  it  shall  be  of  the  opinion  that 
any  of  the  rates,  or  charges  whatsoever,  demanded,  charged,  or 
collected  by  any  common  carrier  or  carriers,  subject  to  the  pro- 
visions of  this  act,  for  the  transportation  of  persons  or  property 
as  defined  in  the  first  section  of  this  act  or  that  any  regulations 
or  practices  whatsoever  of  such  carrier  or  carriers  affecting  such 
rates,  are  unjust  or  unreasonable,  or  unjustly  discriminatory,  or 
unduly  preferential  or  prejudicial,  or  otherwise  in  violation  of 
any  of  the  provisions  of  this  act,  to  determine  and  prescribe  what 
will  be  the  just  and  reasonable  rate  or  rates,  charge  or  charges, 
to  be  thereafter  observed  in  such  case  as  the  maximum  to  be 
charged;  and  what  regulation  or  practice  in  respect  to  such 
transportation  is  just,  fair,  and  reasonable  to  be  thereafter  fol- 
lowed ;  and  to  make  an  order  that  the  carrier  shall  cease  and  de- 
sist from  such  violation,  to  the  extent  to  which  the  commission 
find  the  same  to  exist,  and  shall  not  thereafter  publish,  demand, 
or  collect  any  rate  or  charge  for  such  transportation  in  excess 
of  the  maximum  rate  or  charge  so  prescribed,  and  shall  conform 
to  the  regulation  or  practice  so  prescribed.  All  orders  of  the 
commission,  except  orders  for  the  payment  of  money,  shall  take 
effect  within  such  reasonable  time,  not  less  than  thirty  days,  and 
shall  continue  in  force  for  such  period  of  time,  not  exceeding  two 
year.s,  as  shall  be  prescribed  in  the  order  of  the  commission,  un- 
less the  same  shall  be  suspended  or  modified  or  set  aside  by  the 
commission." 

Similar  rights  are  given  the  commission  with  reference  to 
through  routes  and  joint  rates  and  the  division  of  joint  rates. 


282  P\)K(E  OF  Orders  op  Commission  [§20G. 

The  statute  does  uot  give  the  courts  any  power  over  the  legisla- 
tive acts  of  the  commission,  but  such  power  is  recognized  as 
existing  independent  of  the  grant  of  express  power.  At  the  end 
of  the  foregoing  quotation  these  words  appear  in  the  statute: 
"or  be  suspended  or  set  aside  by  a  court  of  competent  jurisdic- 
tion." In  section  16  the  "venue  of  suits  brought  in  any  of  the 
circuit  courts  of  the  United  States  against  the  commission  to  en- 
join, set  aside,  annul,  or  suspend  any  order  or  requirement  of 
the  commission"  is  prescribed,  and  it  is  provided  that  suits  "may 
be  brought  at  any  time  after  such  order  is  promulgated." 

The  commission  may  apply  to  the  United  States  courts  to  en- 
force its  orders,  and  "if,  upon  such  hearing  as  the  court  may 
determine  to  be  necessary,  it  appears  that  the  order  was  regu- 
larly made  and  duly  served,  and  that  the  carrier  is  in  disobe- 
dience of  the  same,  the  court  shall  enforce  obedience  to  such 
order  by  a  writ  of  injunction,  or  other  proper  process,  manda- 
tory or  otherwise,  to  restrain  such  carrier,  its  officers,  agents,  or 
representatives,  from  further  disobedience  of  such  order,  or  to 
enjoin  upon  it,  or  them,  obedience  to  the  same."  When  the 
commission  brings  suit  to  enforce  an  order,  it,  under  section  16, 
has  only  to  prove  "that  the  order  was  regularly  made  and  duly 
served." 

It  would  seem  from  these  statutory  provisions  that  a  rule  for 
the  future  prescribed  by  the  commission  is  a  law  unless  set  aside 
or  suspended  by  a  court  of  competent  jurisdiction. 

For  what  reasons  then  can  the  courts  set  aside  such  rule  ? 

To  this  question  the  Supreme  Court  has  not  as  yet  given  any 
answer.  It  vdll,  therefore,  be  of  interest  and  value  to  consider 
its. answer  to  analogous  questions. 

(II)  Decisions  of  the  Supremo  Court  relating  to  rates  fixed  hy 
state  legislatures  or  legislative  commissions — Rates  have  been 
for  more  than  thirty  years  prescribed  by  state  legislatures  and 
by  commissions  of  the  different  states.  The  fimctions  of  these 
commissions  are  similar  to  those  of  the  Interstate  Commerce 
Commission,  and  laws  regulating  rates  passed  by  a  state  furnish 
analogous  principles  to  those  passed  by  a  tribunal  to  which  the 
state  has  delegated  such  power.  It  is,  therefore,  valuable  to 
study  the  cases  in  which  the  Supreme  Court  of  the  United  States 
has  had  under  consideration  rates  fixed  by  the  state  legislatures 
or  commissions. 


§  206.]  Fixing  Rates,  Etc.,  for  the  Future.  283 

In  the  oft  cited  case  of  Mimn  v.  Illinois '"  the  Supreme  Court 
was  called  upon  to  decide  whether  or  not  a  statute  passed  by  the 
legislature  of  Illinois  fixing  maximum  rates  of  storage  was  valid. 
The  discussion  is  lengthy,  with  an  historical  review  of  the  au- 
thorities holding  that  public  service  corporations  might  be  reg- 
ulated by  the  legislative  authorities  in  the  matter  of  their 
charges.  The  conclusion  reached  by  the  majority  of  the  court 
is  stated  by  J\Ir.  Chief  Justice  Waite,  who  says: 

"For  our  purposes  we  must  assume  that,  if  a  state  of  facts 
could  exist  that  would  justif}'  such  legislation,  it  actually  did 
exist  when  the  statute  now  under  consideration  was  passed.  For 
us  the  question  is  one  of  power,  not  of  expediency.  If  no  state 
of  circumstances  could  exist  to  justify  such  a  statute,  then  we 
may  declare  this  one  void,  because  in  excess  of  the  legislative 
power  of  the  state.  But  if  it  could,  Ave  must  presume  it  did. 
Of  the  propriety  of  legislative  interference  within  the  scope  of 
legislative  power,  the  legislature  is  the  exclusive  judge. 

"Neither  is  it  a  matter  of  any  moment  that  no  precedent  can 
be  found  for  a  statute  precisely'  like  this.  It  is  conceded  that  the 
business  is  one  of  recent  origin,  that  its  growth  has  been  rapid, 
and  that  it  is  already  of  great  importance.  And  it  must  also  be 
conceded  that  it  is  a  business  in  which  the  whole  public  has  a 
direct  and  positive  interest.  It  represents,  therefore,  a  case  for 
the  application  of  a  long  known  and  well  established  principle 
in  social  science,  and  this  statute  simply  extends  the  law  so  as 
to  meet  this  new  development  of  commercial  progress.  There  is 
no  attempt  to  compel  these  OAATiers  to  grant  the  public  an  in- 
terest in  their  property,  but  to  declare  their  obligations,  if  they 
use  it  in  this  particular  manner. 

"It  matters  not  in  this  case  that  these  plaintiffs  in  error  had 
built  their  warehouses  and  established  their  business  before  the 
regulations  complained  of  were  adopted.  AVhat  they  did  was, 
from  the  beginning,  subject  to  the  power  of  the  body  politic  to 
require  them  to  conform  to  such  regulations  as  might  be  es- 
tablished by  the  proper  authorities  for  the  common  good.  They 
entered  upon  their  business  and  provided  themselves  with  the 
means  to  carry  it  on  subject  to  this  condition.  If  they  did  not 
wish  to  submit  themselves  to  such  interference,  they  should  not 
have  clothed  the  public  with  an  interest  in  their  concerns.     *     * 

='  94  U.  S.,  4  Otto.  113,  24  L.  Ed.    77. 


284  Force  OF  Okders  OP  Commission  [§206. 

"It  is  insisted,  however,  that  the  owner  of  property  is  entitled 
to  a  reasonable  compensation  for  its  use,  even  though  it  be 
clothed  with  a  public  interest,  and  that  what  is  reasonable  is  a 
judicial  and  not  a  legislative  question.  *  *  * 

******* 

"Undoubtedly,  in  mere  private  contracts,  relating  to  matters 
in  which  the  public  has  no  interest,  Avhat  is  reasonable  must  be 
ascertained  judicially.  But  this  is  because  the  legislature  has 
no  control  over  such  a  contract.  So,  too,  in  matters  which  do 
affect  the  public  interest,  and  as  to  which  legislative  control  may 
be  exercised,  if  there  are  no  statutory  regulations  upon  the  sub- 
ject, the  courts  must  determine  what  is  reasonable.  The  con- 
trolling fact  is  the  power  to  regulate  at  all.  If  that  exists,  the 
right  to  establish  the  maximum  of  charge,  as  one  of  the  means 
of  regulation,  is  implied.  In  fact  the  common  law  rule,  which 
requires  the  charge  to  be  reasonable,  is  itself  a  regulation  as  to 
price.  "Without  it  the  owner  could  make  his  rates  at  will,  and 
compel  the  public  to  yield  to  his  terms,  or  forego  the  use.     *     * 

^  ^  ^  dt>  ^  ^  4& 

"We  know  that  this  is  a  power  which  may  be  abused;  but  that 
is  no  argument  against  its  existence.  For  protection  against 
abuses  by  legislatures  the  people  must  resort  to  the  polls,  not  to 
the  courts." 

This  case  was  decided  in  1877,  having  been  kept  under  advise- 
ment by  the  court  for  more  than  a  year.  It  is  one  of  a  series 
of  cases  known  as  the  Granger  Cases,  decided  at  the  same  time. 
The  style  of  the  other  Granger  Cases  may  be  found  in  the  foot- 
note.^ In  another  one  of  these  cases,  Peik  v.  Railway,  the  court 
said: 

"As  to  the  claim  that  the  courts  must  decide  what  is  reason- 
able, and  not  the  legislature.  This  is  not  new  to  this  case.  It 
has  been  fully  considered  in  ]\Iunn  v.  People  of  Illinois.  Where 
property  has  been  clothed  with  a  public  interest,  the  legislature 
may  fix  a  limit  to  that  which  shall  in  law  be  reasonable  for  its 
use.    This  limit  binds  the  court  as  well  as  the  people.    If  it  has 

^  Chicago,  B.  &  Q.  E.  Co.  v.  Iowa  ley,   94   U.   S.   179 ;    24   L.   Ed.   99 ; 

(v.  Cutts),  94  U.  S.  155,  24  L.  Ed.  Winona  &  St.  Paul  E.  Co.  v.  Blake, 

94;    Peik   v.    Chicago    &    N.    "W.    R.  94  U.  S.  180,  24  L.  Ed.  99;    Stone 

Co.,   94   U.    S.   164,   24   L.    Ed.   97;  v.   Wisconsin,   94   U.   S.    181,   24  L. 

Chicago,  M.  &  St.  P.  E.  Co.  v.  Ack-  Ed.  102. 


§  206.]  Fixing  Kates,  Etc.,  for  the  Future.  285 

been  improperly  fixed,  the  legislature,  not  the  courts,  must  be 
appealed  to  for  the  change." 

In  the  Railroad  Commission  Cases,"'  decided  in  1886,  the 
Granger  Cases  were  cited  and  followed,  Mr.  Justice  Harlan  and 
Mr.  Justice  Field  dissenting.  In  the  course  of  the  opinion, 
written  by  the  same  chief  justice  who  wrote  the  opinion  in  Munn 
V.  Illinois,  the  right  to  regulate  was  said  not  to  be  unlimited. 
He  said : 

"From  what  has  thus  been  said,  it  is  not  to  be  inferred  that 
this  power  of  limitation  or  regulation  is  itself  without  limit. 
This  power  to  regulate  is  not  a  power  to  destroy,  and  limitation 
is  not  the  equivalent  of  confiscation.  Under  pretense  of  regu- 
lating fares  and  freights,  the  state  can  not  require  a  railroad  cor- 
poration to  carry  persons  or  property  without  reward;  neither 
can  it  do  that  which  in  laAv  amounts  to  a  taking  of  private  prop- 
erty for  public  use  without  just  compensation,  or  without  due 
process  of  law." 

In  Dow  V.  Beidelman,""  decided  in  1888,  the  Supreme  Court, 
Mr.  Justice  Gray  delivering  the  opinion,  quoted  and  approved 
the  Granger  Cases,  wdth  the  explanation  of  these  opinions  con- 
tained in  the  quotation,  supra,  from  the  opinion  of  Mr.  Chief 
Justice  TVaite  in  the  Railroad  Commission  Cases.  The  Supreme 
Court  in  the  Minnesota  Case'"  (1890)  held  that  the  particular 
rates  there  prescribed  had  not  been  legally  established,  because 
the  state  commission  had  fixed  them  without  a  hearing  as  to 
their  reasonableness.  This  holding  determined  the  case,  and 
the  quotation  from  the  Railroad  Commission  Cases  was  again 
cited.  Mr.  Justice  Bradley,  Mr.  Justice  Gray  and  Mr.  Justice 
Lamar  dissented.    ]\Ir.  Justice  Bradley  said : 

"1  think  it  is  perfectly  clear,  and  well  settled  by  the  decisions 
of  this  court,  that  the  Legislatue  might  have  fixed  the  rates  in 
question.  If  it  had  done  so,  it  would  have  done  it  through  the 
aid  of  committees  appointed  to  investigate  the  subject,  to  acquire 

» Stone     V.     Farmers'     Loan     &  ^125   IT.   S.   680,   31   L.   Ed.   841, 

Trust  Co.,  116  U.  S.  .307,  29  L.  Eel.       8   Snp.  Ct.   1028. 
636,    6    Sup.    Ct.    334,    1191;    Stone  ="  Chicago,  M.   &   St.   Paul  R.   Co. 

V.  111.  Cent.  R.  Co.,  116  U.  S.  347,      v.  Minnesota,  134  U.  S.  418,  33  L. 
29  L.  Ed.  650,  6  Sup.  Ct.  348,  1191 ;       Ed.  970,  10  Sup.  Ct.  462. 
Stone  V.  New   Orleans  &  N.   E.  R. 
Co.,  116  U.   S.  352,  29   L.  Ed.   651, 
6  Sup.  Ct.  349,  391. 


286  Force  OF  Ordehs  OF  Commission  [§206. 

infoniintion,  to  cite  parties,  to  ^et  all  the  facts  before  them,  and 
finally  to  decide  and  report.  No  one  could  have  said  that  this 
was  not  due  process  of  law.  And  if  the  legislature  itself  could 
do  this,  acting  by  its  committees,  and  proceeding  according  to 
the  usual  forms  adopted  by  such  bodies,  I  can  see  no  good  reason 
why  it  might  not  delegate  the  dut.v  to  a  board  of  commissioners, 
charged  as  the  board  in  this  case  was,  to  regulate  and  fix  the 
charges,  so  as  to  be  equal  and  reasonable." 

In  the  Minnesota  case  the  court  did  not  have  under  consid- 
eration the  effect  of  a  rate  legally  passed,  but  the  question  then 
determined  was  the  process  to  be  followed  by  a  state  commis- 
sion in  fixing  rates.  In  the  majority  opinion  this  expression  is 
found:  "The  question  of  the  reasonableness  of  a  rate  of  charge 
for  transportation  by  a  railroad  company,  involving,  as  it  does, 
the  element  of  reasonableness  both  as  regards  the  company  and 
as  regards  the  public,  is  eminently  a  question  for  judicial  in- 
vestigation, requiring  due  process  of  law  for  its  determination." 
This  expression  must  be  construed  as  applying  to  the  particular 
facts  there  discussed  and  does  not  necessarily  mean  that  the 
opinion  in  the  Granger  and  the  Railroad  Commission  Cases  was 
abandoned.  In  1888  Judge  Brewer,  now  Mr.  Justice  Brewer, 
construed  the  cases  in  the  Supreme  Court  as  establishing  this 
rule : '' 

"Counsel  for  complainant  urges  that  the  lowest  rates  the 
legislature  may  establish  must  be  such  as  will  secure  to  the 
o^\•ners  of  the  railroad  property  a  profit  on  their  investment  at 
least  equal  to  the  lowest  current  rate  of  interest,  say  3  per  cent. 
Decisions  of  the  Supreme  Court  seem  to  forbid  such  a  limit  to 
the  power  of  the  legislature  in  respect  to  that  which  they  ap- 
parently recognize  as  a  right  of  the  owners  of  the  railroad  prop- 
erty to  some  reward;  and  the  right  of  judicial  interference  exists 
only  when  the  schedule  of  rates  established  will  fail  to  secure 
to  the  owTiers  of  the  property  some  compensation  or  income  from 
their  investment.  As  to  the  amount  of  such  compensation,  if 
some  compensation  or  reward  is  in  fact  secured,  the  legislature 
is  the  sole  judge." 

In    the    Texas    Commission    Case,^'    (1894),   the   facts   found 


^'^  Chicago  &  N.  "W.  H.  Co.  v.  Dey  ^"Reagan    v.     Farmers'     Loan    & 

et   al.,   35   Fed.   866,   2   I.   C.   C.   E.       Trust  Co.,  154  U.  S.  362,  38  L.  Ed. 
325,  1  L.  R.  A.  744.  1014,  14  Sup.  Ct.  1047. 


§  206.]  Fixing  Kates,  Etc.,  for  the  Future.  287 

showed  ''that  the  proposed  tariff  as  enforced  will  so  diminish 
the  earnings  (of  the  carriers)  that  they  will  not  be  able  to  pay 
one-half  the  interest  on  the  bonded  debt  above  the  operating  ex- 
penses." On  this  state  of  facts  Mr.  Justice  Brew^er  said:  "There 
can  be  no  doubt  of  their  (the  courts)  power  and  duty  to  inquire 
whether  a  body  of  rates  prescribed  by  a  legislature  or  a  com- 
mission is  imjust  and  imreasonable,  and  such  as  to  work  a  prac- 
tical destruction  to  rights  of  property,  and  if  found  so  to  be,  to 
restrain  its  operation." 

In  the  Kentucky  Turnpike  Case,''  (1896),  Mr.  Justice  Har- 
lan, for  the  court,  said : 

"It  is  proper  to  say  that  if  the  answer  had  not  alleged,  in 
substance  that  the  tolls  prescribed  by  the  act  of  1890  were 
wholly  inadequate  for  keeping  the  road  in  proper  repair  and  for 
earning  dividends,  we  could  not  say  that  the  act  was  unconsti- 
tutional merely  because  the  company  (as  was  alleged,  and  as 
the  demurrer  admitted)  could  not  earn  more  than  four  per 
cent,  on  its  capital  stock." 

In  Symth  v.  Ames,'*  (1898),  the  rule  above  quoted  is  ap- 
proved. The  authorities  up  to  that  time, are  fully  discussed  and 
the  court  announced  the  propositions  then  established  as  the 
law  as  follows: 

"In  view  of  the  adjudications  these  principles  must  be  re- 
garded as  settled. 

"1.  A  railroad  corporation  is  a  person  wdthin  the  meaning 
of  the  14th  amendment  declaring  that  no  state  shall  deprive 
any  person  of  property  without  due  process  of  law,  nor  deny  to 
any  person  within  its  jurisdiction  the  equal  protection  of  the 
laws. 

"2.  A  state  enactment,  or  regulations  made  under  the  author- 
ity of  a  state  enactment,  establishing  rates  for  the  transporta- 
tion of  persons  or  property  by  railroad  that  wnll  not  admit  of 
the  carrier  earning  such  compensation  as  under  all  the  circum- 
stances is  just  to  it  and  to  the  public,  would  deprive  such  car- 
rier of  its  property  without  due  process  of  law,  and  deny  to  it 
the  equal  protection  of  the  laws,  and  would  therefore  be  re- 
I)ngnant  to  the  14th  Amendment  of  the  Constitution  of  the 
I'nited  States. 

*»  Covington  &  L.  Turnpike  R.  Co.  ■"''  Smyth  v.   Ames,   169   U.  S.  466, 

V.   Santlford,   164   U.   S.   596,  41   L.       42  L.  Ed.  819,  18  Sup.  Ct.  418. 
Ed.  561,  17  Sup.  Ct.  198. 


288  Force  op  Orders  op  Commission  [§  206. 

"3.  While  rates  for  the  transportation  of  persons  and  prop- 
erty within  the  limits- of  a  state  are  primarily  for  its  determina- 
tion, the  question  whether  they  are  so  unreasonably  low  as  to 
deprive  the  carrier  of  its  property  without  such  compensation 
as  the  constitution  secures,  and  therefore  without  due  process 
of  law,  can  not  be  so  conclusively  determined  by  the  legislature 
of  the  state,  or  by  regulations  adopted  under  its  authority,  that 
the  matter  may  not  become  the  subject  of  judicial  inquiry." 

The  rule  thus  announced  is  but  an  amplification  of  the  prin- 
ciples announced  by  Mr.  Chief  Justice  Waite  in  the  Railroad 
Commission  Cases,  supra. 

Up  to  this  time  in  the  history  of  the  Supreme  Court  the  only 
limit  upon  the  rule  announced  in  the  Granger  Cases  was  that 
expressed  by  Mr.  Chief  Justice  Waite  in  the  Eailroad  Commis- 
sion Cases,  which  limit  was  more  fully  stated,  though  not  en- 
larged as  to  the  principle,  in  Smyth  v.  Ames. 

In  the  Cotting  Case  ^'  Mr.  Justice  Brewer  discusses  the  ante- 
cedent cases  and  says : 

"As  to  parties  engaged  in  performing  a  public  service,  while 
the  power  to  regulate  has  been  sustained,  negatively  the  court 
has  held  that  the  legislature  may  not  prescribe  rates  which  if 
enforced  would  amount  to  a  confiscation  of  property.  But  it  has 
not  held  affirmatively  that  the  legislature  may  enforce  rates 
which  stop  only  this  side  of  confiscation,  and  leave  the  property 
in  the  hands  and  under  the  care  of  the  owners  without  any  re- 
muneration for  its  use.  It  has  declared  that  the  present  value 
of  the  property  is  the  basis  by  Avhich  the  test  of  reasonableness 
is  to  be  determined,  although  the  actual  cost  is  to  be  considered, 
and  that  the  value  of  the  services  rendered  to  each  individual  is 
also  to  be  considered.  It  has  also  ruled  that  the  determination  of 
the  legislature  is  to  be  presumed  to  be  just,  and  must  be  upheld 
unless  it  clearly  appears  to  result  in  enforcing  unreasonable  and 
unjust  rates." 

He  then  distinguished  between  those  "eases  in  which  a  pub- 
lic service  is  distinctly  intended  and  rendered"  and  those  "in 
which,  without  any  intent  of  public  service,  the  owners  have 
placed  their  property  in  such  a  position  that  the  public  has  an 
interest  in  its  use."     As  to  the  first  class  of  cases,  those  en- 


Cotting    V.    Godard,    183    U.    S.   79,  46  L.  Ed.  92,  22  Sup.  Ct.  30. 


§  206.]  Fixing  Rates,  Etc.,  for  the  Future. 


289 


gaged  in  purely  public  service,  ^Ir.  Justice  Brewer  suggests, 
but  does  not  decide,  a  rule  as  follows : 

"In  the  one  it  may  be  said  that  he  voluntarily  accepts  all  the 
conditions  of  public  service  which  attach  to  like  service  per- 
formed by  the  state  itself.  In  the  other,  that  he  submits  to  only 
those  necessary  interferences  and  regulations  which  the  public 
interests  require.  In  the  one  he  expresses  his  willingness  to  do 
the  work  of  the  state,  aware  that  the  state  in  the  discharge  of  its 
public  duties  is  not  guided  solely  by  a  question  of  profit.  It  may 
rightfully  determine  that  the  particular  service  is  of  such  im- 
portance to  the  public  that  it  may  be  conducted  at  a  pecuniary 
loss,  having  in  view  a  larger  general  interest.  At  any  rate,  it 
does  not  perform  its  services  with  the  single  idea  of  profit.  Its 
thought  is  the  general  public  welfare.  If  in  such  a  case  an  in- 
dividual is  willing  to  undertake  the  work  of  the  state,  may  it  not 
be  urged  that  he  in  a  measure  subjects  himself  to  the  same  rules 
of  action,  and  that  if  the  body  which  expresses  the  judgment  of 
the  state  believes  that  the  particular  services  should  be  rendered 
without  profit  he  is  not  at  liberty  to  complain  ?  While  we  have 
said  again  and  again  that  one  volunteering  to  do  such  services 
cannot  be  compelled  to  expose  his  property  to  confiscation,  that 
he  cannot  be  compelled  to  submit  its  use  to  such  rates  as  do  not 
pay  the  expenses  of  the  work,  and  therefore  create  a  constantly 
increasing  debt  which  ultimately  works  its  appropriation,  still 
is  there  not  force  in  the  suggestion  that  as  the  state  may  do  the 
work  without  profit,  if  he  voluntarily  undertakes  to  act  for  the 
state  he  must  submit  to  a  like  determination  as  to  the  paramount 
interests  of  the  public? 

"Again,  wherever  a  purely  public  use  is  contemplated,  the 
state  may  and  generally  does  bestow  upon  the  party  intending 
such  use  some  of  its  governmental  powers.  It  grants  the  right 
of  eminent  domain,  by  which  property  can  be  taken,  and  taken, 
not  at  the  price  fixed  by  the  owner,  but  at  the  market  value.  It 
thus  enables  him  to  exercise  the  powers  of  the  state,  and,  exer- 
cising those  powers  and  doing  the  work  of  the  state,  is  it  wholly 
unfair  to  rule  that  he  must  submit  to  the  same  conditions  which 
the  state  may  place  upon  its  own  exercise  of  the  same  powers 
and  the  doing  of  the  same  work?  It  is  unnecessary  in  this  case 
1o  determine  this  question." 

The  decisifm  refers  only  to  the  second  class,  those  who  inci- 
dentally and  not  with  an  original  intention  so  to  do  have  placed 


290  Force  op  Orders  of  Commission  [§  206. 

their  property  in  sncli  a  position  that  the  public  lias  an  in- 
terest in  its  use.     Of  this  class  it  is  said : 

''In  reference  to  this  latter  class  of  cases,  which  is  alone  the 
subject  of  present  inquiry,  it  must  be  noticed  that  the  individual 
is  not  doing  the  work  of  the  state.  He  is  not  using  his  property 
in  the  discharge  of  a  purely  public  service.  He  acquires  from 
the  state  none  of  its  governmental  powers.  His  business  in  all 
matters  of  purchase  and  sale  is  subject  to  the  ordinary  conditions 
of  the  market  and  the  freedom  of  contract.  He  can  force  no  one 
to  sell  to  him,  he  cannot  prescribe  the  price  which  he  shall  pay. 
He  must  deal  in  the  market  as  others  deal,  buying  only  when 
he  can  buy  and  at  the  price  at  which  the  owner  is  willing  to  sell, 
and  selling  only  when  he  can  find  a  purchaser  and  at  the  price 
Avhich  the  latter  is  willing  to  pay.  If  under  such  circumstances 
he  is  bound  by  all  the  conditions  of  ordinary  mercantile  trans- 
actions he  may  justly  claim  some  of  the  privileges  which  attach 
to  those  engaged  in  such  transactions.  And  while  by  the  deci- 
sions heretofore  referred  to  he  cannot  claim  immunity  from 
all  state  regulation  he  may  rightfully  say  that  such  regulation 
shall  not  operate  to  deprive  him  of  the  ordinary  privileges  of 
others  engaged  in  mercantile  business." 

This  decision  was  rendered  in  1901  and  can  not  be  construed 
as  overruling  or  even  limiting  Munn  v.  Illinois.  After  quoting 
from  that  ease  Mr.  Justice  Brewer  says:  ''While  there  was  a 
division  of  opinion  in  the  court,  yet  the  doctrine  thus  stated  re- 
ceived the  assent  of  a  majority  of  its  members,  and  has  been 
reaffirmed  since,  although  accompanied  by  a  constant  dissent." 
The  cases  referred  to  in  this  opinion  are  shown  in  a  note  hereto." 


»»Budd  V.  New  York,   14.3  U.   S.  State,  68  Ala.  58.  44  Am.  Eep.  128; 

517,  36  L.  Ed.  247,  4  I.  C.  E.  45,  12  Baker  v.  State,  54  Wis.  368,  12  N. 

Sup.   Ct.   468;    Brass  v.   North  Da-  W.  12;   Nash  v.  Page,  80  Ky.  539, 

kota  ex  rel.  Stoeser,  153  U.  S.  391,  44    Am.    Rep.    490;     Girard     Point 

38  L.   Ed.   757,  4  I.   C.  R.   670,   14  Storage   Co.   v.   Southwark   Foundry 

Sup.  Ct.  857.     See  also  the  follow-  Co.,  105  Pa.  248;   Sawyer  v.  Davis, 

ing  cases  in   state  courts:      People  136    Mass.    239,    49    Am.    Rep.    27; 

V.  Budd,  117  N.  Y.  1,  5  L.  R.  A.  Brechbill  v.  Randall,  102  Ind.  528, 

5.59,  22  N.   E.   670;   Lake  Shore  &  52    Am.    Rep.    695,    1    N.    E.    362; 

M.    S.    R.    Co.    V.    Cincinnati,    S.    &  Delaware,  L.  &  W.  R.  Co.  v.  Central 

C.   R.   Co..   30   Ohio   St.   604;    State  Stock- Yard  &  Transit  Co.,  45  N.  J. 

ex  rel.   Attorney  General  v.   Colum-  Eq.  50,  6  L.  R.  A.  855,  17  Atl.  146. 

bus   Gaslight   &   Coke   Co.,   34   Ohio  Spring       Valley       Waterworks       v. 

St.  572,  32  Am.  Bep,  390;  Davis  v.  Scbottler,  110  U.  S.  347,  28  L.  Ed. 


§206.]  Fixing  Rates,  Etc.^  for  the  Future.  291 

In  Atlantic  C.  L.  R.  Co.  v.  North  Carolina  Corp.  Com.,''  Mr. 
Justice  White  in  a  note  cites  the  Granger  Cases,  except  the 
case  of  ]\Iunn  v.  Illinois,  as  supporting  this  rule :  ' '  The  elemen- 
tary proposition  that  railroads,  from  the  public  nature  of  the 
business  by  them  carried  on  and  the  interest  which  the  public 
have  in  their  operation,  are  subject,  as  to  their  state  business,  to 
state  regulation,  which  may  be  exerted  either  directly  by  the 
legislative  authority,  or  by  administrative  bodies  endowed  with 
power  to  that  end,  is  not  and  could  not  be  successfully  ques- 
tioned, in  view  of  the  long  line  of  authorities  sustaining  that 
doctrine. ' ' 

The  Railroad  Commission  Cases  and  others  since  then  are 
cited  as  establishing  this  rule:  ''As  the  public  power  to  reg- 
ulate railways  and  the  private  right  of  owTiership  of  such  prop- 
erty coexist  and  do  not  the  one  destroy  the  other,  it  has  been 
settled  that  the  right  of  o^Miership  of  railway  property,  like 
other  property  rights,  finds  protection  in  constitutional  guar- 
anties, and,  therefore,  wherever  the  power  of  regulation  is  ex- 
erted in  such  an  arbitrary  and  unreasonable  way  as  to  cause  it 
to  be  in  effect  not  a  regulation,  but  an  infringement  upon  the 
right  of  ownership,  such  an  exertion  of  poAver  is  void  because 
repugnant  to  the  due  process  and  equal  protection  clauses  of  the 
14th  amendment." 

The  decision  announced  sustained  a  ruling  of  the  North  Caro- 
lina Corporation  Commission  requiring  the  railroad  to  put  on 


173,  4  Sup.   Ct.  48;   Eailroad  Com-  C.    E.    560,    14    Sup.    Ct.    1047;    St. 

mission   Cases,   116  U.   S.  307,   sub.  Louis   &   S.    F.   E.   Co.   v.   Gill,    156 

nom.    Stone    v.    Farmers'    Loan    &  U.   S.   649,  39   L.  Ed.   567,  15   Sup. 

Trust  Co.,  29  L.  Ed.  636,  6  Sup.  Ct.  Ct.   484;    Covington   &  L.   Turnpike 

334,   388,    1191;    Wabash,   St.   L.   &  Eoad    Co.    v.    Sandford,    164    U.    S. 

P.  E.  Co.  V.  Illinois,  118  U.  S.  557,  578,  41  L.  Ed.  560,  17  Sup.  Ct.  198; 

30  L.  Ed.  244,  1  I.  C:  E.  31,  7  Sup.  Smyth   v.   Ames,   169  U.  S.   466,  42 

Ct.  4;  Dow  V.  Beidelman,  125  U.  S.  L.   Ed.   819, '18   Sup.   Ct.   418;    San 

680,  31  L.  Ed.  841,  2  L  C.  E.  56,  Diego    Land    &    Town    Co.    v.    Na- 

8  Sup.  Ct.  1028 ;  Chicago,  M.  &  St.  tional  City,  174  U.  S.  739,  43  L.  Ed. 

P.  E.  Co.  V.  Minnesota,  134  U.   S.  1154,  19  Sup.  Ct.  804;  Chicago,  M. 

418,  .33  L.  Ed.  970,  3  T.  C.  E.  209,  &   St.   P.   E.    Co.   v.    Tompkins,    176 

10  Sup.  Ct.  462,  702;   Chicago  &  G.  TJ.   S.   167,  44   L.   Ed.   417,   20   Sup. 

T.  E.  Co.  V.  Wellman,  143  U.  S.  339,  Ct.  336. 

36   L.    Ed.    176,    12    Sup.    Ct.    400,  =''206  U.  S.  1,  51  L.  Ed.  933,  27 

Eoagfin  V.  Farmers'  Loan  &  T.  Co.,  Sup.  Ct.  5So. 
154  U.  S.  362,  38  L.  Ed,  1014,  4  I, 


202  Force  OF  OiJDKiw  OF  CoMMissroN  [§206. 

a  train  to  make  a  certain  connection,  althoufj^li  sneh  train  would 
be  operated  at  a  loss.    The  decision  was  made  in  1!)07. 

That  the  rule  announced  in  IMunn  v.  Illinois  did  not  mean 
that  under  the  guise  of  regulation  property  could  be  destroyed 
is  shoM'n  by  the  interpretation  of  that  rule  given  by  its  author 
ill  his  opinion  in  Stone  v.  Farmers'  Loan  &  Trust  Co.,  supra. 
AVhat  was  meant  by  destroying  property  or  by  taking  private 
property  for  public  use  without  just  compensation  was  not  de- 
fined. Subsequent  cases  have  illustrated  the  meaning  of  those 
terms,  and  in  doing  so  it  can  not  be  said  that  the  principle  an- 
nounced in  ]\Iunn  v.  Illinois  has  been  abandoned.  "Just  com- 
pensation" means  more  than  the  cost  of  service,  though  where 
it  is  required  by  the  public  interest,  a  public  carrier  undertaking 
the  state's  business  of  transportation  may  be  required  to  trans- 
port at  cost,  or,  in  particular  instances,  at  less  than  cost.^'  Com- 
pensation then  as  said  in  Smyth  v.  Ames  must  be  just  to  the 
carrier  and  to  the  public.  Who  then  must  determine  the  jus- 
tice of  a  particular  rate.  To  prescribe  a  rate  for  the  future  is 
unquestionably  a  legislative  act,  whether  a  particular  rate  has 
been  prescribed,  as  in  the  IMinnesota  Case,  supra,  in  such  a  way 
as  to  deny  "due  process  of  law,"  or  whether  a  rate  takes  prop- 
erty for  public  use  "without  just  compensation"  are  questions 
that  must  ultimately  be  determined  by  the  courts.  Nor  are  the 
courts  exercising  legislative  powers  in  so  doing.  The  legislative 
branch  of  the  government  must  obey  the  constitution,  and  it  has 
long  been  established  by  the  Supreme  Court  of  the  United 
States  that  when  it  is  called  upon  to  determine  whether  or  not 
an  act  of  the  legislative  branch  shall  be  enforced,  it  can  and 
must  decide  whether  the  passage  of  such  act  was  authorized  by 
the  fundamental  law  of  the  Union.  What  is  just  compensation 
is  a  flexible  term,  equally  honest  and  equally  competent  men 
might  materially  disagree  on  this  subject.  Should  the  net  in- 
come on  the  investment  be  2,  3.  4,  5,  6.  or  7  per  cent?  If  the 
legislature,  or  a  board  duly  created  and  acting  in  a  perfectly 
legal  way.  fixes  a  particular  amount  as  the  maximum  income 
that  shall  be  earned  by  a  public  carrier,  shall  the  courts  annul 


=«  Cnvinjjton  &  L.  Turnpike  E.  Co.  18  Sup.  Ct.  418 ;   Atlantic  Coast  L. 

Y.  Sandford.  164  TJ.  S.  596,  41  L.  Ed.  R.  Co.  v.  North  Carolina  Corp.  Com., 

.561,    17    Slip.    Ct.    198;     Smvth    v.  206  U.  S.  1,  51  L.  Ed.  9-33,  27  Sup. 

Ames,  169  U.  S.  466,  42  L.  Ed.  819,  Ct.  585. 


§  206.]  Fixing  RxVtes,  Etc.,  for  the  Future.  293 

such  action  if  in  the  opinion  of  the  particular  judge  or  judges 
trying  the  case,  the  amount  fixed  is  not  just  compensation  ?  That 
the  courts  in  a  clear  case  where  there  can  be  little  or  no  doubt 
that  the  compensation  is  inadequate,  must  act  under  their  ob- 
ligation to  support  and  enforce  the  Constitution  of  the  United 
States,  and  in  such  cases  declare  the  rate  prescribed  illegal  will 
not,  as  has  sometimes  been  intimated,  make  the  Supreme  Court 
of  the  United  States  the  supreme  legislative  tribunal  in  this 
country.  It  must  be  a  clear  case  to  justify  action  by  the  courts, 
but  as  said  by  Mr.  Justice  IMoody  -J" 

' '  The  courts,  in  clear  cases,  ought  not  to  hesitate  to  arrest  the 
operation  of  a  confiscatory  law,  but  they  ought  to  refrain  from 
interfering  in  cases  of  any  other  kind.  Regulation  of  public 
service  corporations,  which  perform  their  duties  under  condi- 
tions of  necessary  monopoly  will  occur  with  greater  and  greater 
frequenc}^  as  time  goes  on.  It  is  a  delicate  and  dangerous  fimc- 
tion,  and  ought  to  be  exercised  with  a  keen  sense  of  justice  on 
the  part  of  the  regulating  body,  met  by  a  frank  disclosure  on 
the  part  of  the  company  to  be  regulated. ' ' 

AYhat  percentage  on  the  amount  invested  in  the  public  use  the 
investors  are  entitled  to  receive  must,  of  course,  depend  upon 
many  considerations.  Some  of  which  are  stated  in  the  Knox- 
ville  Water  Case  and  the  New  York  Gas  Case."  In  the  Knox- 
ville  Case,  where  the  proof  indicated  clearly  that  the  earnings, 
after  deducting  two  per  cent,  for  depreciation,  Avould  net  four 
per  cent.,  the  court  held  that  confiscation  had  not  been  proved. 
In  the  Gas  Case  Mr.  Justice  Peekham,  speaking  for  the  court, 
said:  ''Taking  all  facts  into  consideration,  we  concur  with  the 
court  below  on  this  question,  and  think  complainant  is  entitled  to 
six  per  cent,  on  the  fair  value  of  its  property  devoted  to  the 
public  use."  Neither  of  these  cases  announce  a  general  rule, 
and  it  is  obvious  that  what  would  be  reasonable  in  one  ease 
might  be  unjust  in  another.  A  railroad  which  must  from  its 
very  nature  be  more  or  less  of  a  monopoly  would  not  be  entitled 
to  as  large  a  return  as  a  more  hazardous  business.  All  these 
questions  are  primarily  questions  of  policy  for  the  legislature, 


^Knoxville    v.    Knoxville    Watei  C.'o.,  212  U.  S.  1,  53  L.  Ed.         ,  29 

Co.,  212  U.  S.  1,  18,  53  L.  Ed.         ,  Sup.    Ct.    148;    Wilcox    v.    Consoli- 

29  Sup  Ct.  148.  diitod    Gas    Co.,    212    U.    S.    19,    53 

*"  Knoxville    v.    Knoxville     Watei  L.  Ed.         ,  29  Suj).  Ct.  392. 


294:  Force  of  Orders  of  Commission  [§  20G. 

and  it  is  only  when  the  rate  prescribed  viohites  the  constitutional 
requirement  that  courts  may  act. 

(Ill)  Decisions  under  the  Hephiirn  Amendment. — In  the 
Stickney  Case  ^'  a  preliminary  application  was  brou<i'ht  to  enjoin 
an  order  requiring  the  carriers  to  desist  from  charging  $2  per 
car  for  transporting  live  stock  l)r()ught  fr-om  outside  the  State 
of  Illinois,  from  the  ends  of  their  roads  in  Chicago  to  the  Union 
Stockyards,  and  not  to  exact  for  that  service  hereafter  a  greater 
sum  than  $1  per  car.  These  terminal  charges  were  separately 
stated  by  the  carriers  in  their  tariffs,  and  the  commission  held, 
Clark  and  Harlan  dissenting/'  that  such  charges  nmst  be  con- 
sidered as  part  of  the  through  rate,  and  that,  when  so  consid- 
ered, they  were  unreasonable.  The  court,  Judges  Sanborn, 
Hook  and  Adams,  held  that  the  connnission  erred  as  a  matter 
of  law  in  not  considering  the  terminal  chai-ges  separately  from 
the  through  rate,  and  for  this  error  in  law,  the  order  of  the 
commission  was  restrained.  Without  stopping  to  consider  the 
question  as  to  whether  the  court  or  the  connnission  was  right  as 
a  matter  of  law,  it  must  not  be  overlooked  that  the  court  did  not 
attempt  to  control  the  discretion  of  the  commission,  but  acted  on 
the  assumption  that  the  law,  which  was  the  only  authority  for 
any  action  by  the  commission,  did  not  authorize  the  particular 
action  taken.     The  court  said: 

"The  defendant  is  a  legislative  commission,  empowered  to  dis- 
charge certain  legislative  duties — among  others,  to  determine 
and  prescribe  what  are  just  and  reasonable  rates  for  carriers  of 
interstate  commerce  to  charge  for  the  different  kinds  of  service 
which  they  are  authorized  to  perform  for  the  public ;  that  is,  to 
determine  and  prescribe  what  may  be  the  maximum  of  their 
charges  for  through  transportation,  terminal,  storage,  icing,  and 
other  services  incidental  to  transportation,  which  they  print  or 
publish  in  their  schedules,  to  be  performed  by  them.  Being  a 
commission  of  the  character  mentioned,  we  at  least  perceive  no 
reason  for  giving  its  proceedings  and  conclusions  greater  efficacy 
than  is  accorded  to  those  of  quasi  judicial  bodies,  created  to  per- 
form duties  involving  inquiry  into  facts  and  application  of  law 
thereto.  The  finding  of  facts  on  controverted  and  conflicting  evi- 
dence by  such  bodies,  when  not  brought  about  by  fraud  or  mis- 


"  Stickney  v.  Int.  Com.  Com.,  164  *- Cattle  Raisers'  Asso.  v.  Chicago, 

Fed.  638,  643,  644.  B.  &  Q.  R.  Co.,  12  I.  C.  C.  R.  507. 


§  206.]  Fixing  Rates,  Etc.,  for  the  Future.  295 

take,  is  generally  conclusive,  and  ought  not  to  be  disturbed  by 
the  courts;  but  when  facts  found,  conceded,  or  established  with- 
out dispute  admit  of  but  one  legal  conclusion,  and  a  different  and 
erroneous  one  is  reached  by  reason  of  a  misconception  and  mis- 
application of  law  by  such  bodies,  their  action  is  subject  to  re- 
view, and  may  and  ought  to  be  avoided  by  the  courts.  James  v. 
Germania  Iron  Co.,  46  C.  C.  A.  476,  107  Fed.  597 ;  Johnson  v. 
Towsley,  13  Wall.  72,  20  L.  Ed.  485;  Moore  v.  Robbins,  96  U. 
S.  530,  24  L.  Ed.  848. 

''We  refrain  from  expressing  any  opinion  concerning  what 
other  jurisdiction,  if  any,  is  conferred  upon  this  court  by  the 
broad  and  comprehensive  language  of  the  Hepburn  act,  author- 
izing it  'to  enjoin,  set  aside,  annul  or  suspend  any  order  or  re- 
quirement of  the  commission.'  All  we  are  required  now  to  hold, 
and  all  we  do  hold,  is  that  this  court  has  ample  jurisdiction  to 
set  aside  or  suspend  any  order  of  the  commission  resulting  from 
a  misconception  and  misapplication  of  a  law  to  conceded  or  un- 
disputed facts." 

In  the  case  of  Missouri,  Kansas  &  Texas  R.  Co.  v.  Interstate 
Commerce  Commission,'''  a  preliminary  injunction  was  sought 
against  an  order  of  the  commission  in  which  it  fixed  certain  rates 
for  the  future.  In  denying  this  injunction,  Van  Devanter,  Hook 
and  Adams  announce  rules  of  law  applicable  to  such  cases.  A 
brief  epitome  of  these  rules  is  given : 

(1)  Neither  Congress  nor  any  legislative  or  administrative 
board  is  competent  to  establish  rates  that  will  not  yield  just  and 
reasonable  compensation  to  the  carrier. 

(2)  The  determination  of  the  commission  does  not  and  can 
not  preclude  judicial  inquiry  "into  the  justness  and  reasonable- 
ness of  the  rates,  within  the  meaning  of  the  constitutional  guar- 
anty, for  that  is  a  judicial  question." 

(3)  Proper  consideration  must  be  given  to  the  cost  and  value 
of  the  service. 

(4)  The  provision  of  the  statute  that  rates  shall  be  reasonable 
"ivithin  the  constitutional  guaranty^'  and  the  provision  against 
unjust  or  undue  discrimination  or  preference  limit  the  power  of 
tlie  commission. 

(5)  Tbe  powers  of  the  commission  deal  with  existing  vested 


♦3  164  Fed.  645.  For  commission's      v.  Mo.,  Kan.  &  T.  Ry.  Co.,  11  T.  C. 
decision,    see    Cattle   Raisers'    Asso.      C.  R.  296,  13  I.  C.  C.  R.  418. 


296  Force  of  Orders  of  Commission  [§  206. 

rights  and  are  unlike  those  of  the  general  land  office  and  the 
Pension  Office. 

(6)  The  statute  recognizes  and,  if  need  be,  declares  the  right 
of  the  courts  to  review  the  action  of  the  commission. 

(7)  Hearings  to  set  aside  such  orders  are  de  novo. 

(8)  Not  decided  what  would  be  the  effect  should  carriers  re- 
fuse to  present  their  testimony  before  the  commission. 

(9)  In  approaching  the  consideration  of  a  case  like  this  the 
court  should  start  with  the  presumption  that  the  order  is  valid, 
and  was  made  after  a  careful  consideration  and  a  correct  de- 
termination of  every  question  of  fact  underlying  it,  and  it  should 
be  accorded  that  respect  and  influence  which  ought  to  attend, 
and  does  attend,  the  action  of  a  legislative  or  administrative 
board,  whose  members  are  in  point  of  ability,  learning  and  ex- 
perience specially  qualified  to  determine  such  matters.  In  short, 
the  burden  of  showing  that  the  facts  are  such  as  to  render  the 
order  invalid  rests  upon  the  carrier  assailing  it,  and  unless  the 
case  made  on  behalf  of  the  carrier  is  a  clear  one  the  order  ought 
to  be  upheld. 

(10)  This  ruling  not  in  conflict  with  Sticlmey  Case,  supra. 

(11)  Applying  what  has  been  said  to  the  ease  now  before  us, 
we  hold  that  we  may  properly  inquire  whether  the  rates  in 
question  are  just  and  reasonable,  within  the  meaning 
of  the  constituti(mal  guaranty,  and  whether  they  are  unjustly 
discriminatory  or  unduly  preferential,  within  the  meaning  of 
the  statute,  and  that  we  may  properly  consider  all  of  the  evi- 
dence submitted  by  the  railway  companies,  although  some  of  it 
was  not  before  the  commission.  *  *  *  *  The  evidence  sub- 
mitted *  *  *  is  clearly  wanting  in  that  certainty,  fullness, 
and  persuasive  force  which  ought  to  be,  and  is,  essential  to  over- 
come the  force  of  the  commission's  finding  or  determination 
upon  which  the  order  is  based. 

Upon  these  principles  the  application  for  a  preliminary  in- 
junction was  denied. 

In  Delaware,  L.  &  W.  R.  Co.  y.  Commission.  166  Fed.  498, 
the  order  of  the  commission  was  enjoined  because  it  had  no  jur- 
isdiction of  the  subject  matter.  In  the  same  styled  case,  at  page 
499  of  the  same  reporter,  a  majority  of  the  court  (composed  of 
Lacombe,  Ward  and  INFartin)  held  tliMt  the  commission  had  no 
legal  authority  to  make  the  order,  and  a  preliminary  injunction 
was  issued.     In  the  same  styled  case,  155  Fed.  512,  Judge  La- 


§  206.]  Fixing  Rates,  Etc.,  for  the  Future.  297 

combe  refused  a  preliminary  injunction  without  stating  the  na- 
ture of  the  order  sought  to  be  enjoined. 

In  New  York  C.  &  H.  R.  R.  Co.  v.  Int.  Cora.  Com.."  Judges 
Noyes  and  Lacombe  (Judge  Ward  dissenting),  after  discussing 
the  various  objections  to  the  orders  of  the  commission,  say : 

"The  extent  to  which  this  court  under  the  Hepburn  amend- 
ment may  inquire  into  the  mere  reasonableness  of  orders  made 
by  the  commission  is  a  most  serious  question.  Section  15  pro- 
vides that  orders  of  the  commission  shall  take  effect  and  remain 
in  force  for  a  prescribed  time,  unless  'suspended  or  set  aside  by 
a  court  of  competent  jurisdiction.'  Under  one  possible  con- 
struction of  this  provision,  a  court  could  only  set  aside  an  order 
when  it  infringed  upon  a  constitutional  right  of  the  carrier,  or 
failed  to  comply  with  the  provisions  of  the  statute.  The  ob- 
jections to  the  validity  of  the  present  order  which  have  already 
been  examined  illiLstrate  these  questions  which  the  court  un- 
doubtedly has  the  power  to  pass  upon.  On  the  other  hand,  under 
another  possible  construction  of  the  provision,  the  court  has  the 
power  to  pass  upon  tli^  reasonablen.ess  of  the  orders  of  the  com- 
mission upon  their  merits.  We  notice  a  trend  in  the  decisions 
toward  the  latter  construction,  but  we  deem  it  inexpedient  to  ex- 
press any  opinion  in  the  matter  until  after  final  hearing.  For 
the  present,  it  is  sufficient  to  say  that,  assuming  that  we  have  the 
broad  power  of  revision,  we  are  not  now  satisfied  from  an  ex- 
amination of  the  moving  papers  that  the  order  is  unreasonable 
and  impracticable.  Certainly  we  think  that  it  is  not  so  clearly 
impracticable  that  its  enforcement  should  be  suspended  pending 
suit  and  without  a  trial  of  its  working." 

A  majority  of  the  court  in  Southern  Pac.  T.  Co.  v.  Int.  Com. 
Com.,  166  Fed.  134,  refused  a  temporary  injunction  against  the 
order  there  complained  of.  The  case  of  Chicago.  R.  I.  &  P.  Ry. 
Co.  V.  Int.  Com.  Com.,  171  Fed.  680,  has  attracted  con- 
siderable attention  from  those  interested  in  interstate  trans- 
portation. In  this  case  injunctions  were  sought  against 
orders  of  the  commission  in  what  is  known  as  the 
IMissouri  River  Rate  Case,  Burnham,  Ilanna,  IMunger  Dry  Goods 
Co.  v.  Chicago.  R.  I.  &  P.  Ry.  Co.,  14  I.  C.  C.  R.  299,  and  the 
Denver  Case.  Kindel  v.  New  York,  N.  II.  &  H.  R.  Co..  15  I.  C. 
C.  R.  555.  These  two  cases,  which  were  disposed  of  by  one  de- 
fies Fed.  131,  139,  140. 


298  Force  of  Orders  of  Commission  [§  206. 

cision,  raise  the  same  legal  questions.  The  commission  held  in 
the  Missouri  River  Rate  Case  that  through  shipments  from  the 
east  should  take  a  less  rate  than  the  sum  of  the  two  local  ship- 
ments from  the  east  to  the  Mississippi  River  and  from  that 
river  to  the  Missouri  River.  The  same  holding  was  made  in 
the  Kindel  Case  with  reference  to  through  rates  to  Denver  as 
compared  with  the  sum  of  the  locals  thereto.  The  commission 
held  that  the  through  rates  theretofore  in  effect  to  IMissouri 
River  points  and  to  Denver  were  unreasonable;  and  that  body 
applied  two  principles  of  rate  making  very  generally  adopted 
not  only  by  it,  but  by  carriers.  These  principles  were,  a  through 
rate  should  be  less  than  the  sum  of  the  locals,  and  while  rates  in- 
crease with  distance,  the  increase  is  not  in  proportion  to  the  dis- 
tance. The  opinion  of  the  commission  does  not  clearly  state  the 
principles  by  it  applied,  but  it  is  apparent  that  it  considered  the 
principles  just  stated,  for  it  said : 

"As  has  been  noted,  the  Missouri  River  cities  have  a  certain 
territory  naturally  tributary  to  them  in  which  the  Twin  Cities 
are  apparently  nnable  to  compete  with  them,  but  in  certain  other 
territory  naturally  tributary  to  the  Twin  Cities,  the  Twin  Cities 
jobbers  have  an  advantage  over  the  Missouri  River  cities  jobbers, 
and  this  must  necessarily  be  so  as  to  all  distributing  centers  if 
the  cost  of  the  service  and  the  distance  which  goods  are  trans- 
ported are  to  be  given  any  consideration  in  determining  trans- 
portation rates.  It  is  not  possible  to  place  all  commercial  cen- 
ters on  an  equality  in  the  cost  of  transportation  except  by  basing 
transportation  charges  upon  the  same  principle  that  underlies 
the  government's  charges  for  the  transmission  of  mail  matter." 

In  discussing  the  action  of  the  commission,  a  majority  of  the 
court  (Judges  Grosscup  and  Kohlsaat)  were  of  the  opinion  that 
the  commission  has  no  legal  power  to  make  the  orders  com- 
plained of.  These  distinguished  judges  discussed  and  relied 
upon  the  conclusion  reached  by  them  that  giving  a  more  dis- 
tant point  a  less  rate  for  one  movement  than  was  given  an  in- 
termediate point  for  two  separate  movements,  the  sum  of  the  two 
movements  equalling  the  one,  was  undue  discrimination.  The 
opinion  of  the  majority  of  the  court  denied  power  to  the  com- 
mission to  require  carriers  to  do  what  such  carriers  have  fre- 
quently voluntarily  done.  In  this  it  is  believed  that  the  court 
has  unduly  circumscribed  the  power  of  the  commission,  and 
that  the  dissenting  opinion  of  Judge  Baker  is  more  in  accord 


§  206.]  Fixing  Rates,  Etc.,  for  the  Future.  299 

witli  both  the  letter  and  the  purpose  of  the  Hepburn  Act.  Nor 
is  the  argument  made  by  the  court  that  certain  jobbers  in  Cen- 
tral Freight  Association  territory  would  be  injured  by  the  en- 
forcement of  the  orders  of  the  commission,  conclusive.  If  the 
rates  prescribed  by  the  commission  are  legal,  the  fact  that  spe- 
cial privileges  theretofore  enjoyed  by  shippers  are  taken  away  to 
the  loss  of  such  shippers,  is  no  reason  why  the  rates  should  not 
be  enforced.  The  i)rinciples  applied  by  the  commission  have 
been  long  acted  upon  and  applied  by  it  and  by  carriers,  why 
then  should  not  the  commission  have  the  power,  when  it  fuids  the 
facts  justify  such  order,  to  prescribe  the  application  of  these 
principles  to  a  particular  rate  situation?  It  is  believed  they 
have.  The  case  is  on  appeal  to  the  Supreme  Court,  where  a 
final  determination  will  be  had.  The  case,  however,  is  not  based 
upon  the  right  of  a  court  to  retry  questions  of  fact  found  by  the 
coramission.     The  majority  opinion  contains  these  statements: 

"But  in  the  case  here,  the  question  involved  is  not  a  question 
of  fact,  but  a  question  of  power — the  question  is  not  whether,  by 
the  application  of  correct  principles,  a  given  rate  has  been  de- 
cided by  the  commission  to  be  unreasonable,  but  whether  the 
principles  applied  are  themselves  within  the  power  of  the  com- 
mission ;  for  Congress  did  not  intend  to  confer  upon  the  com- 
mission power  to  do  by  indirection  what  it  could  not  directly  do 
-^did  not  intend  to  include  within  the  word  "reasonable"  every 
power  over  the  trade  and  manufacturing  of  the  coimtry  that  the 
commission  should  determine  it  was  reasonable  that  it  (the  com- 
mission) should  possess.  ************ 
It  must  be  understood,  however,  that  these  orders  of  the  com- 
mission are  enjoined  solely  because,  in  our  judgment,  they  lay 
upon  the  commerce  and  manufacturing  of  the  localities  affected, 
an  artificial  hand  that  Congress  never  intended  should  be  put 
forth,  and  therefore  are  outside  the  power  conferred  on  the 
commission  by  Congress-,  for  with  the  question  of  a  reduction  in 
rates,  or  a  readjustment  of  rates,  from  which  such  artificial  re- 
sults have  been  eliminated,  we  are  not  now  dealing." 

If  the  premise  of  the  court  be  conceded,  that  the  commission 
acted  beyond  its  power,  the  injunction  was  properly  granted,  as 
the  action  of  the  commission  not  authorized  by  the  law  of  its 
creation  is  void.  It  is  the  assumed  premise  that  is  believed  to  be 
unsupported.  It  is  tliis  premise  that  Judge  Baker  seeks  to  re- 
fute in  a  forcible  opinion. 


300  Force  OF  Ohdeus  OF  Commission  [§206. 

Other  cases  seeking  to  enjoin  or  set  aside  orders  of  the  com- 
mission made  under  the  Hepburn  bill  have  been  brought  and  are 
pending  in  the  different  courts.  Those  pending  at  this  date,  as 
furnished  by  the  courtesy  of  Hon.  Luther  M.  Walter,  attorney 
for  the  Interstate  Commerce  Commission,  are: 

Illinois  Central  R.  Co.  v.  Int.  Com.  Com.,  Circuit  Court  of 
the  U.  S.,  N.  D.  of  Illinois,  seeking  to  set  aside  order  rendered 
by  the  commission  in  13  I.  C.  C.  R.  451 ; 

Baltimore  &  Ohio  R.  Co.  v.  Int.  Com.  Com.  Circuit  Court  of 
the  U.  S.,  Dist.  of  Md.,  seeking  to  set  aside  order  rendered  by 
the  commission  in  14  I.  C.  C.  R.  86; 

Southern  Pac.  Co.  and  Oregon  &  Cal.  R.  Co.  v.  Int.  Com.  Com., 
Circuit  Court  of  the  U.  S.,  Ninth  Circuit,  N.  D.  of  Cal.,  seeking 
to  set  aside  order  rendered  by  the  commission  in  14  I.  C.  C. 
R.  61; 

New  York  Central  &  H.  R.  R.  Co.  v.  Int.  Com.  Com.,  Circuit 
Court  of  the  U.  S.,  S.  D.  of  New  York,  seeking  to  set  aside  order 
rendered  by  the  commission  in  Ml.  C.  C.  R.  398 ; 

"Wells,  Fargo  &  Co.  v.  Int.  Com.  Com.  (Forwarding  Case), 
Circuit  Court  of  the  U.  S.,  S.  D.  of  New  York,  seeking  to  set 
aside  order  rendered  by  the  commission  in  14  I.  C.  C.  R.  422; 

Union  Pac.  R.  Co.  et  al.  v.  Int.  Com.  Com. ;  Northern  Pac. 
Ry.  Co.  et  al.  v.  Int.  Com.  Com. ;  Great  Northern  Ry.  Co.  et  al.  v. 
Int.  Com.  Com.  (Lumber  Cases),  Circuit  Court  of  the  U.  S.,  Dist. 
of  Minn.,  seeking  to  set  aside  order  rendered  by  the  commission 
in  14  L  C.  C.  R.  1; 

F.  li.  Peavey  &  Co.,  Omaha  Elevator  Co.  et  al.  v.  U.  P.  R. 
Co.  and  Martin  A.  Knapp,  et  al.,  composing  Int.  Com.  Com., 
Circuit  Court  of  the  U.  S.,  Western  Div.  Western  Dist.  of  Mo., 
seeking  to  set  aside  order  rendered  by  the  commission  in  12  I. 
C.  C.  R.  85; 

Harry  J.  Diffenbaugh,  et  al.  v.  Int.  Com.  Com.  (St.  Louis 
Elevator  Cases),  Circuit  Court  of  the  U.  S.,  Western  Div.  of 
Western  Dist.  of  Mo.,  seeking  to  set  aside  order  rendered  by  the 
commission  in  14  I.  C.  C.  R.  317 ; 

Chicago,  Milwaukee  &  St.  Paul  Ry.  Co.  v.  Int.  Com.  Com., 
Circuit  Court  of  the  U.  S..  Eastern  Div.  of  N.  D.  of  Illinois, 
seeking  to  set  aside  order  rendered  by  the  commission  in  14  I. 
C.  C.  R.  520; 

Western  Union   Tel.  Co.  v.  Baltimore  &  Ohio  R.   Co.    (Tele- 


§  206.]  Fixing  Rates^  Etc.,  p^or  the  Future.  301 

graph  Case),  Circuit  Court  of  the  U.  S.,  Dist.  of  Md.,  seeking  to 
set  aside  an  administrative  ruling  of  the  commission. 

Chicago.  ^Milwaukee  &  St.  Paul  Ry.  Co.  v.  Int.  Com.  Com. 
(Coal  Cose),  Circuit  Court  of  the  IT.  S.,  N.  D.  of  Illinois,  Eastern 
Div.,  seeking  to  set  aside  order  rendered  by  the  commission  in 
13  I.  C.  C.  R.  440; 

Chicago,  Milwaukee  &  St.  Paul  Ry.  Co.  v.  Int.  Com.  Com. 
(Red  Wing  Linseed  Case),  Circuit  Court  of  the  U.  S.,  N.  D.  of 
111.,  E.  Div.,  seeking  to  set  aside  order  rendered  by  the  commis- 
sion in  15  I.  C.  C.  R.  47 ; 

Northern  Pacific  Railway  Co.  v.  Int.  Com.  Com.  (Portland 
Gateway  Case),  Circuit  Court  of  the  U.  S.,  Dist.  of  ]Minn.,  seek- 
ing to  set  aside  order  rendered  by  the  commission  in  16  I.  C. 
C.  R.  179. 

Chicago  &  Alton  R.  Co.  v.  Int.  Com.  Com.,  Circuit  Court  of 
the  U.  S.,  N.  D.  of  Illinois,  seeking  to  set  aside  order  rendered 
by  the  commission  in  13  I.  C.  C.  R.  451. 

(IV.)  Conclusion. — From  the  decisions,  both  those  directly  in 
point  and  those  which  by  analogy  indicate  the  holdings  of  the 
courts,  these  principles  may  be  deduced : 

1.  That  courts  have  jurisdiction  to  review  the  orders  of  the 
commission  fixing  rates  for  the  future. 

2.  That  when  the  commission  acts  without  legal  power  given 
it  by  the  statute,  or  disregards  some  law  that  should  have  been 
considered,  its  orders  will  be  set  aside. 

3.  That  when  a  rate  is  such  that  it  takes  the  use  of  property 
without  just  compensation,  it  is  void. 

4.  That  the  courts  may  determine,  in  a  particular  ease,  wheth- 
er or  not  within  the  meaning  of  the  Fifth  Amendment  to  the 
Constitution,  a  rate  takes  property  "without  just  compensa- 
tion." 

5.  That  no  particular  percentage  of  earnings  can  be  fixed  by 
a  court,  but  the  courts  will  determine  whether  a  schedule  of 
rates  that  yields  a  particular  return  on  property  is  just  com- 
pensation. 

6.  That  in  exercising  its  l(>gitimate  functions  in  fixing  rates, 
rules  and  practices,  the  order  of  the  commission  will  be  held 
valid  where  within  its  power  unless  clearly  illegal  in  the  con- 
stitutional sense. 

It  is  difficult  to  see  how  it  can,  in  ordinary  cases,  be  deter- 
mined whether  or  not  a  particular  rate  on  a  particular  com- 


302  Force  of  Orders  of  Commission  f§  206. 

modity  yields  a  just  oonipcnsation.  In  chapter  two  infra  it  is 
shown  that  the  cost  of  moving  one  commodity  can  not  be  de- 
termined. It  "wonld,  therefore,  seem  that  when  the  commission, 
after  a  full  hearing,  and  aided  by  the  long  experience  and  spe- 
cial training  of  its  members,  fixes  a  rate  on  one  or  a  few  com- 
modities that  represent  in  comparison  a  very  small  part  of  the 
traffic  of  the  carrier,  such  rate  would  be  binding  on  all  courts, 
because  no  one  could  prove  it  did  not  yield  a  just  compensation. 
This  statement  has  reference  to  such  orders  as  the  commission 
will  issue.  Of  course,  a  rate  on  even  one  commodity  might  be  so 
low  as  to  be  clearly  illegal.  These  views  are  expressed  by  Mr. 
Justice  Brewer,  in  the  Florida  Phosphate  Rate  Case,"  as  follows: 
' '  The  order  of  the  commission  was  not  operative  upon  all  local 
rates,  but  only  fixed  the  rate  on  a  single  article;  to  wit,  phos- 
phate. There  is  no  evidence  of  the  amount  of  phosphates  car- 
ried locally;  neither  is  it  shoT\Ti  how  much  a  change  in  the  rate 
of  carrying  them  wnll  affect  the  income,  nor  how  much  the  rate 
fixed  by  the  railroads  for  carrying  phosphate  has  been  changed 
by  the  order  of  the  commission.  There  is  testimony  tending  to 
show  the  gross  income  from  all  local  freights  and  the  value  of 
the  railroad  property,  and  also  certain  difficulties  in  the  way  of 
transporting  phosphates,  owing  to  the  lack  of  facilities  at  the 
terminals.  But  there  is  nothing  from  which  we  can  determine 
the  cost  of  such  transportation.  We  are  aware  of  the  difficulty 
which  attends  proof  of  the  cost  of  transporting  a  single  article, 
and,  in  order  to  determine  the  reasonableness  of  a  rate  pre- 
scribed, it  may  sometimes  be  necessary  to  accept  as  a  basis  the 
average  rate  of  all  transportation  per  ton  per  mile.  "We  shall 
not  attempt  to  indicate  to  what  extent  or  in  what  cases  the  in- 
quiry must  be  special  and  limited.  It  is  enough  for  the  present 
to  hold  that  there  is  in  the  record  nothing  from  which  a  reason- 
able deduction  can  be  made  as  to  the  cost  of  transportation,  the 
amount  of  phosphates  transported,  or  the  effect  which  the  rate 
established  by  the  commission  will  have  upon  the  income.  Under 
these  circumstances  it  is  impossible  to  hold  that  there  was  error 
.in  the  conclusions  reached  by  the  Supreme  Court  of  the  State 
of  Florida,  and  its  judgment  is  affirmed." 


« Atlantic  C.  L.  Tf.  Co.  v.  Florida.      L.    Ev.   v.   Florida,   20.3   TJ.   S.    261, 
203  TT.   S.   256.   51   L.  Ed.   174,   27      51  L.  Ed.  175,  27  Sup.  Ct.  109. 
Sup,  Ct.  108,    See  also  Seaboard  A. 


§  206.]  .Fixing  Rates,  Etc.,  for  the  Future.  303 

Another  reason  why  great  care  should  be  observed  in  enjoin- 
ing an  order  fixing  a  rate  is  that  the  shipper  can  not  be  pro- 
tected by  a  bond,  should  the  lower  rate  be  finally  held  valid. 
This  is  clearly  and  unanswerably  sho^^•n  by  Circuit  Judge  Shelby 
in  the  Alabama  Rate  Case/"  where  he  says : 

"It  is  argued  that  the  injunction  should  be  issued  because  the 
rights  of  the  defendants  and  all  interested  are  secured  by  bonds. 
It  is  true  that  the  courts  have  held  that  the  facts  that  the  de- 
fendants' rights  may  be  secured  by  bond  is  sometimes  a  sound 
reason,  in  cases  where  the  final  result  is  doubtful,  for  exercising 
judicial  discretion  in  favor  of  granting  the  preliminary  injunc- 
tion. But  that  rule  is  not  always  controlling,  and  clearly  it 
should  not  be  applied  in  cases  where  the  bond  does  not  afford 
adequate  protection.  Here  the  bonds  given  are  intended  to  se- 
cure innumerable  passengers  and  shippers  or  consignees.  It  is 
not  at  all  probable  that  the  claims  of  the  tenth  of  them,  on  breach 
of  the  bonds,  would  ever  be  presented,  or,  if  presented,  would  be 
paid,  and  to  enforce  payment  in  the  courts,  unless  those  injured 
combined  in  their  efforts,  would  cost  more  than  the  claim  is 
Avorth.  Those  familiar  with  the  Tift  Case  know  that  the  bond 
proved  ineffectual  as  complete  indemnity  in  that  case,  although 
the  parties  sought  to  be  protected  were  large  shippers  of  lumber. 
Tift  et  al.  v.  Southern  Railway  Company  et  al.  (C.  C.)  123  Fed. 
789;  Id.,  10  Inters.  Com.  R.  548;  Id.  (C.  C.)  138  Fed.  753; 
Southern  Railway  Company  et  al.  v.  Tift  et  al.  (C.  C.  A.)  148 
Fed.  1021;  Id.  206  U.  S.  428,  27  Sup.  Ct.  709;  51  L.  Ed.  1124; 
Tift  et  al.  v.  Southern  Railway  Company  et  al.  (C.  C.)  159  Fed. 
555.  "Where  the  injunction  is  granted,  the  bonds  should  of 
course,  be  required,  but  the  -court  can  not  safely  exercise  its 
discretion  upon  the  theory  that  the  bond  in  a  case  like  this  gives 
complete  indemnity. ' ' 

The  rule  now  frequently  adopted  of  allowing  a  rate  to  be 
tested  is  also  approved  by  Circuit  Judge  Shelby.  After  discuss- 
ing the  Knoxville  "Water  Case,  supra,  and  saj'ing  that  the  Su- 
preme Court  had  in  that  case  stressed  the  fact  that  there  had 
been  no  actual  operation  under  the  ordinance,  he  said : 

"In  Central  of  Georgia  Railway  Company  v.  IMcLendon  et  al. 
(C.  C.)   157  Fed.  961,  978,  after  an  order  was  made  at  cham- 

*«  Railroarl     Com  mission     of     Ala-       Fed,  22o,  232,  233.  ' 
bama  v,  Central  of  Ga.  Ry.  Co.,  170 


:'()4  Force  OK  OiiOEHs  OF  (.Nm MISSION        .         [§206. 

bers  by  a  circuit  judge  denying  a  temporary  restraining  order 
((C.  C.)  155  Fed.  975),  the  case  came  on  for  hearing  on  a  mo- 
tion to  grant  a  temporary  injimcticm.  Judge  Newmnn,  who 
heard  the  motion,  declined  to  grant  the  temporary  injunction, 
holding  that  the  rate  claimed  to  be  confiseatory  should  be  tried 
to  ascertain  its  effi'ct  upon  tlie  railway  company's  business.  The 
practice  pursued  by  Judge  Newman  in  that  case,  w'e  think,  is 
to  be  commended." 

Circuit  Judge  Woods,  in  1881,  first  applied  the  test  to  a  rate. 
What  he  there  said  applies  with  great  force  to  a  rate  fixed  by  an 
administrative  commission.    lie  said :  *' 

''The  officers  of  the  railroad  company  declare  that  the  rates 
fixed  by  the  commission  will  so  reduce  its  income  that  it  will  not 
suffice  to  pay  the  running  expenses  of  the  road  and  the  interest 
on  its  bonded  debt,  leaving  nothing  for  dividends  to  its  stock- 
holders. The  railroad  commissioners  assert  that  their  schedule 
was  framed  to  produce  8  per  cent,  income  on  the  value  of  the 
road  after  paying  cost  of  maintenance  and  running  expenses. 
Which  view^  is  the  correct  one,  it  is  impossible  to  decide  from 
the  evidence  submitted.  There  is,  however,  a  conclusive  w'ay, 
and  it  seems  to  me  it  is  the  only  one,  by  which  this  controversy 
can  be  settled,  and  that  is  by  experiment.  A  reduction  of  rail- 
road charges  is  not  always  followed  by  a  reduction  of  either  gross 
or  net  income.  It  can  soon  be  settled  w^hieh  is  right — the  rail- 
road company's  officers  or  the  railroad  commission — in  their 
view  of  the  effect  of  the  commission's  tariff  of  rates,  by  allowing 
the  tariff  to  go  into  operation.  If  it  turns  out  that  the  views  of 
the  railroad  company  are  correct,  and  that  the  schedule  fixed 
by  the  commission  is  too  low  to  afford  a  fair  return  upon  the 
value  of  the  road,  the  remedy  is  plain ;  for  the  law  makes  it 
the  duty  of  the  commissioners  'from  time  to  time,  and  as  often 
as  circumstances  may  require,  to  change  and  revise  said  sche- 
dules.' " 

'"Tilley   v.    Eailroad   Co.,    5    Fed.   641,  662,  4  Woods  427. 


CHAPTER  VI. 

POWER  OF  THE  COURTS  OF  THE  UNITED  STATES  TO 
PREVENT  AN  ILLEGAL  ADVANCE  IN  RATES. 

§  250.     Basic  principles  supporting  the  right  to  enjoin  the  exaction  of  an 
illegal  rate. 

251.  Injunction  against  an  illegal  rate  prior  to  the  act  to  regulate  com- 

merce. 

252.  Injunctions  against  an  illegal  rate  since  the  passage  of  the  act  to 

regulate  commerce  and  prior  to  the  Abilene  Case. 

253.  Such  injunctions  by  circuit  courts  since  the  Abilene  Case. 

254.  The  question  in  the  circuit  courts  of  appeal. 

255.  Constitutional  and  statutory  provisions  affecting  the  question. 

270.  Conclusion. 

271.  Venue   of   suits   to   enjoin   carriers   from   making   an   unreasonable 

advance. 

§  250.  Basic  principles  supporting  the  riglit  to  enjoin  the  ex- 
action of  an  illegal  rate. — Where  an  illegal  rate  is  charged, 
reparation  must  be  demanded  within  two  years  from  the  date 
the  cause  of  action  arises.  Each  individual  must  show  the 
amount  of  his  damage  with  sufficient  certainty  to  enable  the 
commission  to  make  its  findings  of  fact  upon  which  an  order 
therefor  must  be  based.  While  an  association  may  make  claims 
for  reparation  for  its  members,  a  large  part,  much  the  larger 
part  perhaps,  of  the  shippers  would  have  to  bring  separate  suits. 
Where  the  exaction  of  the  illegal  rate  continues  for  more  than 
two  years,  and  it  was  seen  infra  that  in  the  Tift  Case  the  illegal 
rate  was  collected  for  four  years,  in  order  to  avoid  limitation 
each  shipper  must  file  more  than  one  claim  for  reparation.  High 
on  Injunctions  (4th  Ed.),  section  12,  says:  ''It  may  be  laid 
down  as  a  general  rule  that  whenever  the  rights  of  a  party  ag- 
grieved can  not  be  protected  or  enforced  in  the  ordinary  course 
of  proceedings  at  law,  except  by  numerous  and  expensive  suits, 
a  court  of  equity  may  properly  interpose  and  afford  relief  by 
injunction."  The  remedy  by  reparation  is  clearly  inadequ:ite, 
the  commission  has  so  stated,  ante  §  158,  and  it  is  obviously  true. 
A  shipper  might  be  ruined  in  business  by  being  unal)le  to  ship 

305 


306  PoNVKi.  OF  Courts  of  United  S'tates  [§  251. 

at  an  illegal  rate,  yet  be  unable  to  recover  his  damages,  at  least 
to  the  extent  of  the  injury. 

In  the  case  of  U.  S.  v.  Union  Pac.  R.  Co.,  160  U.  S.  1,  16  Sup. 
Ct.  190,  40  L.  Ed.  319,  it  was  held  that  an  act  of  Congress 
which  imposed  certain  duties  upon  all  railroads  and  telegraph 
companies  to  which  the  United  States  had  granted  a  subsidy, 
although  giving  a  special  remedy  by  mandamus,  did  not  deny 
to  the  United  States  the  remedy  which  could  be  attained  by  a 
bill  in  equity.  And  the  court  there  announced  the  general 
doctrine : 

"It  is  not  enough  that  there  is  a  remedy  at  law.  It  must  be 
plain  and  adequate,  or,  in  other  words,  as  practical  and  efficient 
to  the  ends  of  justice  and  its  prompt  administration  as  the  rem- 
edy in  equity." 

Of  the  meaning  of  irreparable  injury.  High  (sec.  22)  says: 
"By  irreparable  injurj^  it  is  not  meant  that  the  injury  is  beyond 
the  possibility  of  repair  by  money  compensation  but  it  must  be 
of  such  a  nature  that  no  fair  and  reasonable  redress  may  be  had 
in  a  court  of  law  and  that  to  refuse  the  injunction  would  be  a 
denial  of  justice." 

§  251.  Injunction  against  an  illegal  rate  prior  to  the  act  to 
reg'ulate  commerce. — The  Eailway  Commissioners  of  England  are 
given  no  power  to  enjoin  a  threatened  unjust  or  illegal  charge 
by  carriers.  Halsbury's  Laws  of  England,  Vol.  4,  p.  70,  sec. 
115.  says: 

"To  make  excessive  charges  for  the  carriage  of  goods  is  not 
a  denial  of  reasonable  facilities  within  the  jurisdiction  of  the 
commissioners.  If  a  railway  company  exacts  an  excessive  charge, 
the  excess  can  be  recovered  by  action ;  and  if  such  charge  is  only 
threatened,  an  injunction  can  be  obtained  to  restrain  it.  Hence 
the  ordinary  courts  should  deal  with  these  questions,  and  the 
commissioners  have  no  jurisdiction." 

In  a  case  in  a  state  court  in  Ohio,  where  a  bill  was  filed  to 
prevent  the  charging  of  a  discriminatory  rate,  the  court  said:  ^ 

"AYe  think  the  authorities  abundantly  show  that  in  a  case 
like  the  one  at  har  the  plaintiff  can  seek  relief  by  injunction, 
and  that  is  an  appropriate  mode  to  determine  the  rights  of  the 
parties  here,  without  first  resorting  to  an  action  at  law.     The 


^Scofleld  V.  Lake  Shore  &  M.  S.      54  Am.  Eep.  846. 
E.  Co.,  43  Ohio  St.  571,  3  N.  E.  907, 


§  251.]  TO  Prevent  an  Illegal  Advance.  307 

plaintiffs  have  a  manufacturing  capacity  of  150,000  barrels  per 
year.  Shall  they  be  compelled  to  bring  a  separate  action  for 
each  car  load?  We  think  that  plaintiffs  have  a  clear  and  un- 
doubted right  to  come  into  a  court  of  equity  and  have  the  rights 
of  the  parties  determined  in  a  single  action." 

In  Coe  V.  Louisville  &  Nashville  R.  Co.,  3  Fed.  775,  decided 
in  1880,  an  injunction  was  granted  to  prevent  discriminatory 
practices  of  the  defendant.  The  language  of  the  judge  who 
wrote  the  opinion  applies  with  equal  force  to  any  kind  of  illegal 
rate,  whether  illegal  because  unreasonably  high  or  illegal  be- 
cause discriminatory.  In  the  course  of  the  opinion  the  court 
said: 

''But  defendant,  protesting  that  the  proposed  discrimination 
in  favor  of  the  Union  Stock  Yard  Company  would,  if  executed, 
constitute  no  wrong  of  which  complainants  ought  justly  to 
complain,  contends:  First,  that  complainants,  even  supposing  the 
law  to  be  otherwise,  have  an  adequate  remedy  at  law,  and 
therefore  can  not  have  any  relief  from  a  court  of  chancery; 
and.  second,  that  if  a  chancery  court  may  entertain  jurisdiction, 
no  relief  in  the  nature  of  a  mandatory  order  to  compel  defend- 
ant to  continue  accommodations  to  the  complainants  ought  to 
be  made  until  the  final  hearing.  If  such  is  the  law  it  must  be 
so  administered.  But  we  do  not  concur  in  this  interpretation  of 
the  adjudications.  Those  cited  in  argument  are  not,  we  think, 
applicable  to  the  facts  in  the  case.  Complainants  could,  in  the 
event  defendant  carries  its  threat  into  execution  and  withholds 
the  accommodations  claimed  as  their  right,  sue  at  law  and  re- 
cover damages  for  the  wrong  to  be  thus  inflicted.  But  they 
could  not,  through  anj^  process  used  by  courts  of  law,  compel 
defendant  to  speeitically  perform  its  legal  duty  in  the  premises. 
And  this  imperfect  redress  could  only  be  obtained  through  a 
multiplicity  of  suits,  to  be  prosecuted  at  great  expense  of  money 
and  labor:  and  then,  after  reaching  the  end  through  harassing 
(h'lays  incident  to  such  litigation,  complainants'  business  would 
bo  destroyed,  and  the  Union  Stock  Yard  Company,  born  of 
favoritism  and  fostered  by  an  illegal  and  unjust  discrimination, 
would  be  secure  in  its  monopoly.  Here  an  adequate  remedy  can 
be  administered  and  a  multiplicity  of  suits  avoided." 

In  Soutliern  Express  Company  v.  INIemphis  &  Little  Rock  R. 
Co.  8  Fed.  799,  2  IMcCray.  570,  decided  in  1881,  the  coui-t  held 
it  luid  the  power  to  prevent  discrimination  and  to  prevent  the 


308  Power  of  Courts  of  United  States  [§251. 

charging'  of  a  rate  higher  than  a  maximnm  which  the  court  liad 
jurisdiction  to  fix.     It  was  there  stated,  italics  supplied: 

"The  railroad  company  is  bound  to  carry  for  the  express 
company  for  a  reasonable  compensation,  and  must  not  discrim- 
inate against  it.  A  court  of  chancery  has  power  to  decree  a 
compliance  with  this  wholesome  regulation.  This  court  can  not 
for  a  moment  sanction  the  proposition  that  the  railroad  com- 
pan.y  wvaj,  by  extortion  or  unjust  discrimination,  exclude  the 
express  company  from  the  right  to  conduct  its  business  upon 
their  railroad.  I  am  not  prepared  now  to  fix  the  maximum 
rates  to  be  charged  for  the  transportation  of  express  matter, 
but  I  have  no  doubt  of  the  power  of  the  court,  after  investiga- 
tion, to  do  so.  An  order  for  this  purpose  should  not,  as  a  rule, 
be  made  until  after  a  reference  to  a  master,  and  a  report  by  him 
after  hearing.  For  the  present,  the  injunction  hereinbefore  al- 
lowed will  be  modified  so  as  to  enjoin  and  restrain  the  re- 
spondent from  charging  the  complainant  for  the  transportation 
of  express  matter,  including  closed  packages,  more  than  a  fair 
and  reasonable  rate;  such  charges  in  no  case  to  exceed  the  rate 
charged  upon  similar  express  matter  to  itself,  or  to  any  othei 
express  company,  or  for  similar  express  matter  received  from, 
or  delivered  to,  the  Iron  IMountain,  etc.,  Eailroad  Company  Ex- 
press, or  the  Pacific  Express  Company." 

This  cause  was  affirmed  by  ]\Ir.  Justice  IMiller  and  Judge  ^Mc- 
Crary.  Judge  Treat  dissenting.  Southern  Express  Co.  v.  St. 
Louis,  I.  M.  &  S.  Ey.  Co.,  10  Fed.  210.  3  McCray.  147  (Express 
Cases).  Mr.  Justice  IMiller,  writing  the  opinion,  sustained  the 
injimction  theretofore  granted,  and  held  that  the  carriers  were 
imder  a  duty  to  serve  express  companies  and  that  the  court 
could  fix  a  reasonable  rate  therefor.  This  case,  \\ath  the  other 
cases  kno"\ATi  as  the  Express  CaiSes,''  was  reversed  by  the  Su- 
preme Court  in  1886.  The  reversal,  however,  was  not  because 
the  court  below  had  no  jurisdiction  to  enjoin  an  unreasonable 
charge,  but  because  express  companies,  being  themselves  common 
carriers,  could  not,  without  legislation,  through  the  courts  com- 
pel other  common  carriers  to  give  them  equal  facilities  of  trans- 
portation. "While  the  decision  of  the  Supreme  Court  may  not 
be  construed  as  expressly  approving  the  doctrine  that  a  court 

==  Memphis  &  L.  E.  E.  Co.  v.  29  L.  Ed.  791,  6  Sup.  Ct.  542,  628. 
Southern  Express  Co.,  117  V.  S.  1, 


§  251.]  TO  Prevent  an  Illegal  Advance.  309 

could,  by  injunction,  compel  a  carrier  to  transport  at  a  reason- 
able rate,  such  opinion  by  the  language  used  expressly  recognized 
that  the  rights  of  a  general  shipper  were  different  from  those 
of  express  companies.     The  court  said : 

"The  question  is  not  whether  these  railroad  companies  must 
furnish  the  general  public  with  reasonable  express  facilities,  but 
whether  they  must  carry  these  particular  express  carriers  for 
the  purpose  of  enabling  them  to  do  an  express  business  over  the 
lines.  *******  ^*  *  *  *  *  The  stoppage  of 
their  facilities  was  one  of  the  risks  they  (the  express  companies) 
assumed  when  they  accepted  their  contracts,  and  made  their 
investments  under  them.  If  the  general  public  were  complain- 
ing because  the  railroad  companies  refused  to  carry  express 
matter  themselves  on  their  passenger  trains,  or  to  allow  it  to  be 
carried  by  others,  different  questions  would  be  presented." 

The  use  of  the  expression  'common  carrier"  ex  vi  termini 
means  that  such  carrier  is  bound  to  carry  for  all;  being  bound 
to  carry,  it  must  carry  upon  reasonable  terms.  The  difference 
between  refusing  to  carry  at  all  and  refusing  to  carry  except 
for  an  unreasonable  price  is  a  difference,  if  at  all,  merely  in  de- 
gree and  not  in  kind.  This  idea  is  clearly  and  correctly  ex- 
pressed by  the  New  Hampshire  court  as  follows :  ^ 

"A  denial  of  the  entire  right  of  service  by  a  refusal  to  carry 
differs,  if  at  all,  in  degree  only,  and  in  the  amount  of  damage 
done,  and  not  in  the  essential  character  of  the  act,  from  a  denial 
of  the  right  in  part  by  an  unreasonable  discrimination  in  terms, 
facilities  or  accommodations.  "Whether  the  denial  is  general  by 
refusing  to  furnish  any  transportation  whatever,  or  special,  by 
refusing  to  carry  for  one  person  or  his  goods;  whether  it  is  di- 
rect, by  expressly  refusing  to  carry,  or  indirect,  by  imposing 
such  unreasonable  terms,  facilities,  or  accommodations  as  render 
carriage  undesirable ;  whether  unreasonableness  of  terms,  facil- 
ities, or  accommodations  operates  as  a  total  or  a  partial  denial 
of  the  right;  and  whether  the  unreascmableness  is  in  tlie  intrinsic 
individual  nature  of  the  terms,  facilities,  or  accommodations,  oi> 
in  their  discriminating,  collective,  and  comparative  character, — 
the  right  denied  is  one  and  the  same  common  right  which  would 
not  be  a  riglit  if  it  could  be  rightfully  denied,  and  would  not 
Ix'  ('oiimioii   ill  1Im'  legal  sense  if  it  could  be  legally  subjected  to 

'McDudie    V.    rortland    &    R.    R.   Co.,  02  N.  IT.  430,  13  Am.  Rep.  72. 


310  Power  of  Courts  op  United  States  [§  251. 

unreasonable  discrimination  and  parceled  out  among  them  in 
unreasonable,  superior,  and  inferior  grades,  at  the  behest  of  the 
servant  from  whom  the  service  is  due." 

In  Menacho  v.  Ward,  27  Fed.  529,  23  Blatchf.  502,  a  bill  was 
filed  to  restrain  the  carrier  from  charging  complainant  a  higher 
rate  than  was  charged  others.  This  case  was  decided  in  1886, 
and  was  decided  on  the  question  of  the  reasonableness  of  the 
charge,  the  lower  charge  to  the  competitor  being  regarded  as 
evidence  showing  the  unreasonableness  of  the  charge  to  com- 
plainant.    On  this  point  the  court  said : 

"Can  the  defendants  lawfully  require  the  complainants  to 
pay  more  for  carrying  the  same  kind  of  merchandise,  under  like 
conditions,  to  the  same  places,  than  they  charge  to  others,  be- 
cause the  complainants  refuse  to  patronize  the  defendants  ex- 
clusively, while  other  shippers  do  not  ?  The  fact  that  the  carrier 
charges  some  less  than  others  for  the  same  service  is  merely  evi- 
dence for  the  latter,  tending  to  show  that  he  charges  them  too 
much;  but,  when  it  appears  that  the  charges  are  greater  than 
those  ordinarily  and  uniformly  made  to  others  for  similar  ser- 
vices, the  fact  is  not  only  competent  evidence  against  the  car- 
rier, but  cogent  evidence,  and  shifts  upon  him  the  burden  of 
justifying  the  exceptional  charge.  The  estimate  placed  by  a 
party  upon  the  value  of  his  own  services  or  property  is  always 
sufficient,  against  him,  to  establish  the  real  value ;  but  it  has 
augmented  probative  force,  and  is  almost  conclusive  against 
him,  when  he  has  adopted  it  in  a  long-continued  and  extensive 
course  of  business  dealings,  and  held  it  out  as  a  fixed  and  notor- 
ious standard  for  the  information  of  the  public." 

The  question  involved  was  stated  as  follows:  "The  question 
is  whether  the  defendants  refuse  to  carry  for  the  complainants 
on  reasonable  terms."  The  court's  holding  is  shown  by  the  con- 
cluding part  of  the  opinion,  where  it  is  said: 

"Ordinarily  the  remedy  against  a  carrier  is  at  law  for  dam- 
ages for  a  refusal  to  cany,  or  to  recover  the  excess  of  charges 
paid  to  obtain  the  deliver}^  of  goods.  The  special  circumstances 
in  this  case  indicate  that  such  a  remedy  would  not  afford  com- 
plete and  adequate  redress,  'as  practical  and  efficient  to  the  ends 
of  justice,'  as  the  remedy  in  equity.  AVatson  v.  Sutherland,  5 
Wall.  74,  72  U.  S.  74,  18  L.  Ed.  580." 

The  case  of  Watson  v.  Sutherland,  cited  in  the  last  quoted 
paragraph   of   the   opinion   of   Judge   Wallace  in   Menacho  v. 


§252.]  TO  Prevent  ax  Illegal  Advance.  311 

Ward  supra,  was  a  case  where  injunction  was  songht  to  pre- 
vent the  levy  of  a  fieri  facias.  The  principal  announced  by  Mr. 
Justice  Davis  is  equally  applicable  to  a  case  seeking  to  enjoin 
an  illegal  advance,  the  exaction  of  which  might  cause  loss  of 
trade  and  destruction  of  business.    Mr.  Justice  Davis  said: 

''Loss  of  trade,  destruction  of  credit,  and  failure  of  business 
prospects,  are  collateral  or  consequential  damages,  which  it  is 
claimed  would  result  from  the  trespass,  but  for  which  compen- 
sation cannot  be  awarded  in  a  trial  at  law. 

"Commercial  ruin  to  Sutherland  might,  therefore,  be  the  ef- 
fect of  closing  his  store  and  selling  is  goods,  and  yet  the  com- 
mon law  fails  to  reach  the  mischief.  To  prevent  a  consequence 
like  this,  a  court  of  equity  steps  in,  arrests  the  proceedings  in 
limine ;  brings  the  parties  before  it ;  hears  their  allegations  and 
proofs,  and  decrees,  either  that  the  proceedings  shall  be  unre- 
strained, or  else  perpetually  enjoined.  The  absence  of  a  plain 
and  adequate  remedy  at  law  affords  the  only  test  of  equity  jur- 
isdiction, and  the  application  of  this  principle  to  a  particular 
case  must  depend  altogether  upon  the  character  of  the  case, 
as  disclosed  in  the  pleadings.  In  the  case  we  are  considering,  it 
is  very  clear  that  the  remedy  in  equity  could  alone  furnish  re- 
lief, and  that  the  ends  of  justice  required  the  injunction  to  be 
issued. ' ' 

§  252.  Injunctions  against  an  illegal  rate  since  the  passage  of 
the  act  to  regulate  commerce  and  prior  to  the  Abilene  Case. — The 
decision  of  the  Supreme  Court  in  the  Abilene  Case  *  has  been 
regarded  by  some  courts  as  materially  affecting  the  question  of 
whether  or  not  an  illegal  rate  demanded  by  a  common  carrier 
could  be  enjoined.  The  effect  of  this  decision  will  be  discussed 
in  the  next  section.  In  this  section  will  be  given  cases  prior 
to  and,  therefore,  unaffected  by  the  Abilene  Case. 

In  Interstate  Stock  Yards  Co.  v.  Indianapolis  U.  Ry.  Co.,  99 
Fed.  472,  suit  was  filed  charging  and  seeking  to  enjoin  unlaw- 
ful discrimination  against  the  complainant  in  the  transportation 
of  interstate  commerce  by  refusing  to  deliver  at  its  switch  live 
stock  in  car-load  lots  consigned  to  it  from  other  states  for  de- 
livery at  its  stock  yards  in  the  city  of  Indianapolis,  and  to  re- 
ceive for  shipment  live  stock  in  car-load  lots  to  be  transported 

*  Texas  &  Pac.  Ry.  Co.  v.  Abilene      L.  Ed.  553,  27  Sup.  Ct.  350. 
Cotton   Oil  Co.,  204  U.   S.  426,  51 


312  F*()\vEi^  OF  CoruTs  of  [Tnitrd  States  [§252. 

and  delivered  to  eoiisignees  in  other  states  than  the  State  of  In- 
diana.    The  commerce  act  was  considered  in  the  opinion : 

"The  remaining  question  is  whether,  under  the  facts  and  the 
law,  it  is  shown  that  the  unlawful  discrimination  complained  of 
is  threatened  or  exists.  It  is  clear,  by  force  of  the  express  terms 
of  the  interstate  commerce  act,  that  in  respect  of  interstate  com- 
merce there  can  be  no  lawful  discrimination  to  the  advantage  or 
disadvantage  of  any  person,  place,  locality,  or  kind  of  traffic. 
A  common  carrier  of  interstate  freight  can  not  lawfully  deny 
switch  connections  and  service  to  one  person,  place,  locality,  or 
kind  of  traffic  which  it  affords  to  others  similarly  situated." 

The  preliminary  injunction  was  granted,  the  order  resting  on 
this  principle  of  law : 

"The  nature  of  the  wrong  complained  of.  the  fact  that  it  is  of 
a  continuing  character,  that  it  is  not  susceptible  of  accurate  pe- 
cuniary estimation,  and  that  resort  to  actions  at  law  would  in- 
volve a  multiplicity  of  suits,  none  of  which  would  end  the  liti- 
gation, all  tend  to  make  it  manifest  that  the  remedy  in  a  court 
of  law  is  not  as  adequate  to  afford  relief  as  is  the  remedy  in  a 
court  of  equity.  The  jurisdiction  in  equity  does  not  depend 
upon  the  fact  that  there  is  no  remedy  at  law.  It  is  afforded 
whenever  the  remedy  at  law  is  not  as  full,  adequate,  and  com- 
plete as  in  a  court  of  equity.  The  rule  that  equitable  relief  will 
not  be  granted  until  the  complainant's  right  or  title  in  respect 
of  the  subject-matter  has  been  established  in  an  action  at  laAV, 
does  not  apply  where  the  subject-matter  of  the  litigation  is  to 
prevent  discrimination  in  violation  of  the  interstate  commerce 
act." 

This  case  was  cited  by  the  Supreme  Court,  assuming,  for  the 
purposes  of  decision,  that  rights  to  a  legal  rate  could  be  "en- 
forced by  a  bill  in  equity."  This  remark  of  the  Supreme  Court 
is  the  more  significant  because  the  circuit  court  had  held  that 
no  jurisdiction  existed  to  grant  the  relief  prayed  in  the  case 
where  such  expression  was  used. 

In  Tift  V.  Southern  Raihvay  Co.,  123  Fed.  789,  an  injunction 
was  prayed  against  an  advance  in  freight  rates.  About  April 
15,  1903,  an  advance  of  two  cents  per  hundred  poimds  on  lumber 
from  Georgia  and  other  southeastern  points  to  points  on  and  be- 

» Central  Stock  Yards  Co.  v.  568,  .570,  48  L.  Ed.  565,  569,  24 
LouisviUe  &  N,  E.  Co.,   192   U.   S.       Sup.  Ct.  339. 


§  252.]  TO  Prevent  an  Illegal  Advance.  313 

yond  the  Ohio  River  was  scheduled  to  take  effect.  Captain  H. 
H.  Tift  and  other  citizens  of  Georgia  filed  their  bill  in  the  United 
States  Circuit  Court  for  the  Southern  District  of  Georgia  against 
the  carriers  joining  in  the  advance  from  Georgia.  Some  of  the 
defendant  carriers  were  citizens  of  Georgia,  residents  of  the 
southern  district  thereof,  and  some  were  citizens  of  other  states; 
all  were  parties  to  the  rates  from  Georgia  to  the  Ohio  River 
either  as  initial  or  connecting  carriers.  There  was  no  diversity 
of  citizenship.  The  suit  was  brought  to  enjoin  this  advance,  it 
being  alleged  that  the  two  cents  per  hundred  pounds  was  un- 
reasonable and  unjust.  Judge  Speer  granted  a  temporary  writ 
of  injimction,  and  the  rate  was  not  then  put  in  effect.  Upon 
hearing  for  the  injimction,  Judge  Speer  entered  this  order : 

"In  case  the  respondents  shall  enforce  the  rates  complained 
of,  and  the  complainants  shall  make  proper  application  to  the 
Interstate  Commerce  Commission  to  redress  their  alleged  griev- 
ances, the  court  will  entertain  a  renewed  application  on  the 
record  as  made  and  such  appropriate  additions  thereto  as  may 
be  proposed  by  either  party,  enjoining  the  enforcement  of  such 
rates  pending  the  investigation  b}^  the  commission,  unless  other- 
wise dissolved ;  and  on  presentation  to  the  court  of  the  report 
of  the  commission  such  other  action  will  be  taken  as  will  be 
conformable  to  law  and  the  principles  of  equity." 

The  carriers,  upon  the  entry  of  this  order,  gave  the  statutory 
notice  and  the  advance  became  effective  June  22,  1903.  Imme- 
diately the  complainants  filed  their  petition  with  the  Interstate 
Commerce  Commission,  and,  having  done  so,  renewed  their  ap- 
plication before  Judge  Speer  for  an  injimction.  In  a  carefully 
written  opinion,  supported  by  logic  and  authority.  Judge  Speer 
upheld  the  jurisdiction  of  the  court  to  grant  the  injunction,  but 
upon  a  stipulation  in  judicio  by  the  defendants  that  any  over- 
charge collected  which  should  finally  be  held  illegal  would  be 
repaid  to  those  paying  such  overcharge,  he  withheld  the  writ 
pending  action  by  the  commission.  The  conclusions  of  Judge 
Speer  are  sufficiently  shown  from  two  paragraphs  of  his  opinion, 
as  follows: 

"Then  it  is  clear  that  the  court  of  the  United  States  has  juris- 
diction as  such  of  this  question  arising  under  the  constitution 
and  laws  of  the  United  States.  It  is  equally  clear  that  the  court 
sitting  in  equity  has  jurisdiction  to  grant  the  specific  relief 
prayed.     It  has  long  been  the  practice  of  courts  of  equity  to 


314  Power  of  Courts  op  United  States  [§252. 

graut  iiijuiietion  against  extortionate  charges  and  unjust  dis- 
criminations." 

"It  is  equallj^  clear  that  in  this  case  the  court  has  jurisdic- 
tion, in  order  to  avoid  a  multiplicity  of  suits.  It  would  be  a 
reflection  upon  American  jurisprudence  if  such  a  multiude  of 
complainants,  who  have  identical  claims  of  right  relative  to  the 
same  subject-matter  against  a  multitude  of  defendants,  all  of 
whom  are  public  corporations,  who  are  alleged  to  be  in  a  com- 
bination to  inflict  a  common  and  simultaneous  wrong  on  each 
and  every  complainant,  should  be  driven  to  the  cost  and  expense 
of  maintaining  separate  actions  at  law  for  each  instance  of  such 
alleged  wrong.  With  the  same  show  of  reason  it  might  be  in- 
sisted that  each  shipper  could  be  driven  to  his  separate  protest 
against  such  rates  before  the  Interstate  Commerce  Commission. 
IModern  jurisprudence  would  not  tolerate  methods  so  fraught 
vnth  ruinous  expense,  harrassing  and  destructive  delay.  It  fol- 
lows from  these  conditions  that  complainants'  bill  is  properly 
before  the  court,  and  must  be  maintained  to  adjust  the  rights  of 
the  contending  parties  as  they  are  finally  to  be  ascertained." 

After  action  by  the  commission  holding  the  advance  illegal 
(10  I.  C.  C.  R.  548),  the  order  of  the  commission  was  filed  in  the 
original  case  and  sustained  by  Judge  Speer,  who  allowed  a  super- 
sedeas to  his  injunction  upon  the  carriers  entering  into  a  spe- 
cial bond  in  the  sum  of  $500,000,  with  good  securities,  condi- 
tioned to  repay  the  overcharge  collected  should  the  advance  be 
finally  determined  to  be  illegal  (138  Fed.  753).  Judge  Speer 
was  affirmed  by  the  court  of  appeals  (148  Fed.  1021)  and  by 
the  Supreme  Court  (206  U.  S.  428,  51  L.  Ed.  1124,  27  Sup.  Ct. 
709).  Before,  however,  the  case  reached  the  Supreme  Court  the 
Abilene  Case  was  decided  by  that  court,  and  it  was  contended 
that,  under  the  Abilene  decision,  the  circuit  court  had  no  juris- 
diction.    Of  this  point  the  Supreme  Court  said : 

"In  the  case  at  bar,  however,  there  are  assignments  of  error 
based  on  the  objections  to  the  jurisdiction  of  the  circuit  court. 
These  might  present  serious  questions  in  view  of  our  decision  in 
Texas  &  P.  R.  Co.  v.  Abilene  Cotton  Oil  Co.,  204  U.  S.  426,  51 
L.  Ed.  553,  27  Sup.  Ct.  Rep.  350,  upon  a  different  record  than 
that  before  us.  We  are  not  required  to  say,  however,  that  be- 
cause an  action  at  law  for  damages  to  recover  unreasonable 
rates  which  have  been  exacted  in  accordance  with  the  schedule 
of  rates  as  filed,  is  forbidden  by  the  interstate  commerce  act. 


§  252.]  TO  Prevent  an  Illegal  Advance.  315 

a  suit  in  equity  is  also  forbidden  to  prevent  a  filing  or  enforce- 
ment of  a  schedule  of  unreasonable  rates  or  a  change  to  unjust 
or  unreasonable  rates.  The  circuit  court  granted  no  relief  pre- 
judicial to  appellants  on  the  original  bill.  It  sent  the  parties 
to  the  Interstate  Commerce  Commission,  where,  upon  sufficient 
pleadings,  identical  with  those  before  the  court,  and  upon  testi- 
mony adduced  upon  the  issues  made,  the  decision  was  adverse 
to  the  appellants.  This  action  of  the  commission,  with  its 
findings  and  conclusions,  was  presented  to  the  circuit  court,  and 
it  was  upon  these,  in  effect,  the  decree  of  the  court  was  rendered. 
There  was  no  demurrer  to  that  petition,  and  the  testimony  taken 
before  the  commission  was  stipulated  into  the  case,  and  the 
opinion  of  the  court  recites  that,  'with  equal  meritorious  pur- 
pose, counsel  for  the  respective  parties  agreed  that  this  w^ould 
stand  for  and  be  the  hearing  for  final  decree  in  equity. ' 

' '  It  was  certainly  competent  for  the  appellees  to  proceed  in  the 
circuit  court  under  section  16  of  the  interstate  commerce  act 
(24  Stat,  at  L.  379,  chap.  104,  U.  S.  Comp.  Stat.  1901,  p.  3154), 
and  to  apply  by  petition  to  the  circuit  court,  'sitting  in  equity,' 
for  the  court  to  hear  and  determine  the  matter  'as  a  court  of 
equity, '  and  issue  an  injunction  '  or  other  proper  process,  manda- 
tory or  otherwise,'  to  enforce  the  order  of  the  coumiission,  "We 
think  that,  under  the  broad  powers  conferred  upon  the  circuit 
court  by  section  16  and  the  direction  there  given  to  the  court 
to  proceed  with  efficiency,  but  without  the  formality  of  equity 
proceedings,  'but  in  such  manner  as  to  do  justice  in  the  prem- 
ises,' and  in  view  of  the  stipulation  of  the  parties,  recited  in  the 
decree  of  the  court,  the  appellants  are  precluded  from  making 
the  objection  that  the  court  did  not  have  jurisdiction  to  entertain 
the  petition  and  grant  the  relief  prayed  for  and  decreed." 

After  the  affirmance  by  the  Supreme  Court  of  the  Tift  Case, 
parties  other  than  the  original  parties  were  allowed  to  intervene 
on  their  claims  for  the  overcharge  (159  Fed.  555). 

Circuit  Judge  Taft,  in  Toledo,  A.  A.  &  N.  M.  Ey.  Co.  v.  Penn- 
sylvania Company,  54  Fed.  730,  19  L.  R.  A.  387  (1893),  5  I.  C. 
R.  545,  22  U.  S.  App.  561,  applied  the  interstate  commerce 
act  and  enjoined  a  carrier  and  its  employees  from  "refusing  to 
receive  and  deliver  interstate  freight."  In  the  course  of  the 
opinioi)  he  compared  the  case  to  an  analogous  case,  saying: 
"AVlicrf!  it  has  been  sought  to  enforce  tlic  common  law  obliga- 
tion of  a  conmion  carrier,  the  preliminary  mandatory  injunc- 


316  Power  of  Courts  op  United  States  [§  253. 

tion  has  frequently  issued."  For  eases  cited  by  Judge  Taft  on 
this  point  see  note." 

§  253.  Such  injunctions  by  circuit  courts  since  the  Abilene 
Case. — In  the  Tift  Case,  supi-a.  the  Supreme  Court  itself  ex- 
plained what  was  decided  in  the  Abilene  Case.  The  Supreme 
Court  said : 

''In  support  of  these  contentions  appellants  rely  on  Texas  & 
P.  E.  Co.  V.  Abilene  Cotton  Oil  Co.,  supra.  In  that  ease  the 
Abilene  Cotton  Oil  Company  sued  in  one  of  the  courts  in  Texas 
to  recover  the  excess  of  what  it  alleged  to  be  an  unjust  and  lui- 
reasonable  charge  on  shipments  of  car  loads  of  cotton  seed.  The 
defense  was  that  the  rates  were  charged  according  to  the  sche- 
dule or  rates  filed  under  the  interstate  commerce  act,  and  that 
the  court  had  no  jurisdiction  to  grant  relief  upon  the  basis  that 
the  established  rate  was  unreasonable,  when  it  had  not  been 
found  to  be  so  by  the  Interstate  Commerce  Commission.  The 
defense  prevailed  in  the  trial  court,  but  did  not  prevail  in  the 
court  of  civil  appeals,  where  judgment  was  rendered  in  favor 
of  the  cotton  oil  company.  ■  The  judgment  was  reversed  by  this 
court  on  the  ground  that  the  state  courts  had  no  jurisdiction  to 
entertain  a  suit  based  on  the  unreasonableness  of  a  rate  as  pub- 
lished in  advance  of  the  action  of  the  Interstate  Commerce  Com- 
mission adjudging  the  rate  unreasonable.  And  it  was  in  effect 
held  that  reparation  after  such  action  for  the  excess  above  a 
reasonable  rate  must  be  by  a  proceeding  before  the  commission, 
'because  of  a  wrong  endured  during  the  period  when  the  un- 
reasonable schedule  was  enforced  by  the  carrier  and  before  its 
change  and  the  establishment  of  a  new  one." 

It  will  be  seen  that  the  Abilene  Case  had  reference  only  to  a 
right  of  action  for  damages  and  did  not  discuss  the  question  of 
equitable  remedies.  In  discussing  the  Abilene  Case  in  Another 
part  of  the  opinion  in  the  Tift  Case,  IMr.  Justice  McKenna 
said : 

"We  are  not  required  to  say,  however,  that  because  an  action 
at  law  for  damages  to  recover  unreasonable  rates  which  have 
been  exacted  in  accordance  with  the  schedule  of  rates  as  filed, 

"  Coe  V.  Railroad  Co.,  3  Fed.  775 ;  Eq.  433 ;   Denver  &  N.  O.  R.  Co.  v. 

Chicago  &  A.  Ry.  Co.  v.  New  York,  Atchison,    T.    &    S.    F.    Ry.    Co.,    15 

L.   E.   &  W.  Ry.  Co.,  24  Fed.  516;  Fed.    650;    Scofield   v.   Railway   Co., 

Wolverhampton    &    W.    Ry.    Co.    v.  43  Ohio  St.  571,  3  N.  E.  907. 
London  &  N.  W.  Ry.  Co.,  L.  R.  16, 


§  253.]  TO  Prevent  ax  Illegal  Advance.  317 

is  forbidden  by  the  interstate  commerce  act,  a  suit  in  equity  is 
also  forbidden  to  prevent  a  filing  or  enforcement  of  a  schedule 
of  unreasonable  rates  or  a  change  to  unjust  or  unreasonable 
rates." 

It  will  be  seen  that  the  Supreme  Court  uses  the  words  ' '  to  pre- 
vent a  filing  or  enforcement." 

In  Potlatch  Lumber  Co.  v.  Spokane  Falls  &  N.  Ry.  Co.,  157 
Fed.  588,  Judge  Whitson  refused  to  enjoin  an  alleged  illegal 
rate  after  it  had  been  put  in  force  and  while  a  complaint  against 
its  illegality  was  pending  before  the  Interstate  Commerce  Com- 
mission. 

In  Kalispell  Lumber  Co.  v.  Great  N.  Ey.  Co.,  157  Fed.  845, 
the  rate  was  being  enforced,  notwithstanding  which  Judge  Hunt 
granted  an  injunction,  saying: 

"Relief  by  injunction  ought  not  to  be  given,  except  where 
the  showing  is  clear  that  great  injustice  would  be  done  by  oblig- 
ing a  complainant  to  submit  to  mijust  rates  imtil  the  Interstate 
Commerce  Commission  can  act.  As  I  have  indicated,  however, 
when  it  appears  that  enforcement  of  the  schedule  of  rates  will 
l^e  followed  by  practical  and  immediate  destruction  of  the  busi- 
ness of  a  large  number  of  persons,  in  that  it  will  prevent  their 
putting  their  products  into  markets  upon  which  they  have  been 
and  are  largely  dependent,  and  where  it  appears  that  the 
changed  rates  are  extortionate  and  unreasonable,  relief  in  equity 
may  be  granted  merely  luitil  the  Interstate  Commerce  Commis- 
sion shall  have  adjudged  the  rate  to  be  imreasonable  or  other- 
wise. ' ' 

In  Jewett  Bros.  &  Jewett  v.  Chicago,  I\I.  &  St.  P.  Ry.  Co., 
156  Fed.  160,  Judge  Carland  refused  an  injunction ;  he,  how- 
ever, sustained  the  general  jurisdiction  of  the  court  to  enjoin 
an  advance  prior  to  its  becoming  effective.  The  reasoning  of 
Judge  Carland  is  cogent.    He  says: 

"The  carrier  has  the  imdoubted  power  to  fix  a  lawful  rate  for 
the  transportation  of  interstate  freight.  It  has  no  power  to  fix 
an  unlawful  rate.  The  court  when  it  enjoins  a  proposed  unlaw- 
ful rate  does  not  make  any  rate.  It  si  in  ply  restrains  the  com- 
mission by  the  carrier  of  an  unlawful  act.  The  courts  have  for 
years  enjoined  the  putting  in  force  of  rates  proiiiulgattMl  by 
state  boards  of  railroad  commissioners  on  the  ground  that  the 
rates  were  confiscatory,  yet  the  carriers  at  least  liave  not  com- 
plained in  those  eases  that  the  courts  were  exercising  the  rate- 


318  Power  of  Courts  of  United  States  [§  253. 

making  power.  The  courts  in  enjoining  a  proposed  unlawful 
rate  do  not,  nor  do  they  pretend  to,  disturb  in  any  way  rates 
already  in  existence,  and  in  force.  It  also  seems  clear  that 
complainant  has  no  plain,  speedy,  and  adequate  remedy  at  law. 
In  these  days  of  fierce  business  competition  a  difference  of  a 
fraction  of  a  cent  in  a  freight  rate  may  mean  to  the  jobber  or 
wholesaler  success  or  failure  in  business.  The  damage  which  a 
shipper  will  suffer  from  an  unjust  or  discriminatory  freight  rate 
is  not  the  mere  difference  between  a  reasonable  and  just  rate 
and  an  unreasonable  and  unjust  rate.  The  putting  in  of  an  un- 
just rate  or  an  unjustly  discriminatory  rate  may,  in  addition  to 
the  damage  caused  by  the  payment  of  the  rate  itself,  cause  busi- 
ness ruin.  Must  the  shipper  when  notice  is  given  that  a  carrier 
intends  to  put  in  effect  an  imjust  rate  or  an  unjustly  discrimina- 
tory rate  which  the  shipper  knows  will  ruin  his  business  sit 
still,  and  let  the  rate  go  into  effect,  and  then  complain  to  the  In- 
terstate Commerce  Commission,  which  after  three  or  four  years 
may  decide  the  rate  to  be  reasonable  or  unreasonable?  Daniels 
V.  Chicago,  IMilwaukee  &  St.  Paul  Ry.  et  ah,  6  Interstate  Com- 
merce Commission  reports,  458  (complaint  filed  April  28,  1892, 
decided  November  16,  1895).  And,  if  the  shipper  is  successful 
in  his  contention,  he  may  then  with  business  ruined  go  into  court 
to  enforce  the  award  of  the  commission  and  at  the  end  of  three 
or  four  years  more  collect  his  damages,  not  those  arising  from 
the  ruination  of  his  business,  but  merely  the  excess  paid  by  him 
over  and  above  a  reasonable  rate.  There  is  no  plain  and  ade- 
quate remedy  in  such  a  proceeding.  Courts  of  equity  have  often 
in  similar  cases  enjoined  the  putting  in  effect  of  unlawful  rates. 
Menacho  v.  Ward  (C.  C.)  27  Fed.  529;  23  Blatchf.  502;  South- 
em  Express  Co.  v.  Memphis,  etc.,  Ry.  Co.  (C.  C.)  8  Fed.  799, 
2  McCray  570,  affirmed  in  10  Fed.  210,  3  McCray  147;  Coe  v. 
Louisville,  etc.,  Ry.  Co.  (C.  C.)  3  Fed.  775;  Tift  v.  Southern  Ry. 
Co.,  (C.  C.)  123  Fed.  790,  and  authorities  cited.  Also  the  nu- 
merous cases  in  which  courts  of  equity  have  enjoined  unlawful 
rates  sought  to  be  enforced  by  state  authorities." 

The  grounds  for  refusing  the  injunction  were,  that  the  injunc- 
tion suit  was  merely  ancillary  to  a  complaint  before  the  com- 
mission, and  as  the  rate  had  not  become  effective,  the  commission 
had  no  jurisdiction  of  the  complaint,  and,  second,  that  the  theory 
of  the  bill  being  analogous  to  a  bill  to  enjoin  waste  pending  a 
suit  at  law,  relief  could  not  be  granted  unless  complainant's 


§  253.]  TO  Prevent  an  Illeg.vl  Advance.  319 

« 

right  to  recover  at  law  was  clear.  The  court,  from  prior  deci- 
sions of  the  commission,  thought  that  complainant  would  lose 
before  that  body,  and,  therefore,  that  the  right  to  recover  at 
law  was  not  clear.  The  first  reason  given  by  Judge  Garland  is 
liardly  sound,  the  second  is  merely  a  statement  of  the  well- 
kno^^•n  rule  that  preliminary  injiuictions  should  not  be  granted 
when  it  appears  likely  that  complainant  has  no  right  to  recover. 

In  the  case  of  JM.  C.  Kiser  v.  Central  of  Ga.  Ky.  Co.,  158  Fed. 
193,  injunction  was  sought  against  an  alleged  illegal  advance  in 
rates.  The  bill  was  filed  before  the  advance  became  effective, 
and  a  preliminary  injmiction  was  granted  staying  the  advance. 
This  injunction  was  later  so  modified  as  to  allow  the  carriers  to 
file  with  the  Interstate  Commerce  Commission  schedules  show- 
ing the  advance,  though  the  injunction  against  collecting  the 
advance  remained  in  effect  pending  a  decision  by  the  commis- 
sion. Judge  Newman  in  his  opinion  regards  the  Abilene  and  the 
Tift  Cases  as  presenting  the  authorities  controlling  on  the  ques- 
tion of  jurisdiction  which  was  challenged  in  the  case.  After 
discussing  these  two  cases.  Judge  Newman  says : 

''Other  authority  is  cited  bearing  more  or  less  upon  the  ques- 
tion of  jurisdiction  here,  but  the  two  decisions  just  referred  to 
seem  to  be  controlling  when  it  is  ascertained  what  is  held  by 
the  court,  considering  the  two  cases  together.  From  what  is 
said  in  both  cases,  the  ruling  would  seem  to  be  that  general 
power  over  interstate  rates  to  be  charged  by  common  carriers 
is  given  to  the  Interstate  Commerce  Commission,  and  that  for 
the  courts  to  undertake  to  determine  what  are  reasonable  or  un- 
reasonable rates  would  interfere  and  conflict  with  the  exercise 
of  this  power  by  the  commission,  although  instances  might  arise 
in  which  it  would  be  proper  for  a  court  of  equity  to  enjoin  the 
enforcement  of  unreasonable  rates  or  a  change  to  unjust  or  un- 
reasonable rates;  but  that  this  action  of  a  court  of  equity  will 
not  interfere  with  the  final  exercise  by  the  Interstate  Commerce 
Commission  of  the  full  powers  granted  to  it  by  the  act  of  Con- 
gress of  1887,  to  determine  whether  a  given  rate  is  an  unjust 
and  unreasonable  rate,  or  under  the  act  of  June,  1906,  'to  de- 
termine and  prescribe  what  will  be  a  just  and  reasonable  rate 
or  rates,  charge  or  charges,  to  be  thereafter  observed  *  *  * 
*  *  *  *  as  the  maximum  to  be  charged.'  This  seems  to  be 
the  clear  meaning  of  these  decisions.  It  appears,  therefore,  that 
the  court  might  properly  enjoin  carriers  from  establishing,  or 


320  Power  of  Courts  op  ITnited  States  [§  253. 

increasing  to,  an  unreasonable  rate,  at  the  same  time  leaving  the 
matter  in  such  shape  as  that  the  Interstate  Commerce  Commis- 
sion may  ultimately  determine  whether  the  contemplated  in- 
crease is  just  and  reasonable." 

In  Macon  Grocery  Co.  v.  Atlantic  C.  L.  R.  Co.,  163  Fed.  738, 
the  facts  were  similar  to  those  in  the  Kiser  Case,  supra.  The 
jurisdiction  of  the  court  was  challenged,  coimsel  for  defendants 
relying  largely  upon  the  Abilene  Case  as  authority  for  their  con- 
tention. Judge  Speer  reviews  the  authorities,  especially  the 
Abilene  and  Tift  Cases.  He  points  out  that  the  same  question 
of  jurisdiction  was  raised  at  circuit  in  the  latter  case.     He  says : 

"The  Abilene  Cotton  Oil  Case  which  we  have  been  discussing 
was  decided  February  25,  1907.  On  May  27th  of  the  same  year 
the  Supreme  Court  had  under  review  from  this  court  the  case 
of  the  Southern  Railway  Company  v.  Tift,  206  U.  S.  428,  27 
Sup.  Ct.  709,  51  L.  Ed.  1124,  otherwise  known  as  the  'Lumber 
Rate  Case.'  In  the  Tift  Case,  in  the  circuit  court,  the  identical 
objection  for  want  of  jurisdiction  with  which  the  complainants 
are  here  confronted  was  presented  in  several  hearings.  There, 
too,  when  the  bill  was  filed,  the  rate  had  not  been  enforced.  As 
in  the  case  at  bar,  it  had  been  merely  threatened." 

He  then  quotes  from  the  first  decision  in  the  Tift  Case  (123 
Fed.  789,  supra),  and,  continuing  the  discussion  of  that  case 
and  opinion,  says: 

"Numerous  other  authorities  were  cited  in  support  of  these 
propositions.  It  folloAvs  that  the  challenge  to  the  jurisdiction 
could  not  have  been  more  definitely  made,  or  more  definitely  de- 
cided. We  have  seen  that  jurisdiction  was  maintained.  An 
appeal  was  then  taken  to  the  Supreme  Court  of  the  United 
States.  Now,  there  is  nothing  about  which  that  great  court  is 
more  sensitive  than  an  unauthorized  exercise  of  jurisdiction  on 
its  own  part,  or  on  the  part  of  any  of  the  'inferior  courts' 
created  by  Congress.  It  has  often  held  that  it  is  the  duty  of  such 
courts  sua  sponte  to  raise  the  question  of  jurisdiction,  even 
though  the  parties  should  fail,  to  do  so.  No  failure  of  jurisdic- 
tion can  escape  the  perspicacity  of  that  august  tribimal.  Its 
holding,  then,  in  the  Tift  Case  seems  conclusive  of  this  contro- 
versy. Said  Associate  Justice  ]\IcKenna  for  the  court  (Southern 
Ry.  Co.  V.  Tift,  206  U.  S.  437,  27  Sup.  Ct.  711,  51  L.  Ed.  1124)  : 

"  'In  the  case  at  bar  *  *  *  *  there  are  assignments  of 
error  based  on  the  objections  to  the  jurisdiction  of  the  circuit 


§  254.]  TO  Prevent  an  Illegal  Advance.  321 

court.  These  might  present  serious  questions,  in  view  of  our 
decision  in  Texas  &  Pacific  Ry.  Co.  v.  Abilene  Cotton  Oil  Co., 
204  U.  S.  426,  27  Sup.  Ct.  350,  51  L.  Ed.  553,  upon  a  different 
record  than  that  before  us.  We  are  not  required  to  say,  how- 
ever, that  because  an  action  at  law  for  damages  to  recover  lui- 
reasonable  rates  which  have  been  exacted  in  accordance  with 
the  schedule  of  rates  as  filed  is  forbidden  l)y  the  interstate 
commerce  act,  a  suit  in  equity  is  also  forbidden  to  prevent  a 
filing  or  enforcement  of  a  schedule  of  unreasonable  rates,  or  a 
change  to  unjust  or  unreasonable  rates.' 

"What  fairer  or  more  obvious  distinction  has  been  indicated 
by  the  Supreme  Court?  In  the  Abilene  Cotton  Oil  Company 
Case,  in  an  action  at  common  law,  they  denied  jurisdiction. 
That  was  a  diiferent  record  from  this  before  them,  but  because 
of  that  decision  they  were  not  required  to  say  that  'a  suit  in 
ec[uity  is  also  forbidden  to  prevent  a  filing  or  enforcement  of 
a  schedule  of  imreasonable  rates,  or  a  change  to  unjust  or  un- 
reasonable rates.'  If  the  court  had  been  so  required,  it  would 
have  made  the  requirement  effective.  The  absence  of  jurisdic- 
tion and  the  rec^uirement  are  one  and  the  same  thing.  Since 
the  great  tribunal  was  not  so  required,  there  is  no  law  to  forbid 
a  suit  in  equity  'to  prevent  a  filing  or  enforcement  of  a  sche- 
dule of  unreasonable  rates,  or  a  change  to  unjust  or  imreason- 
able rates.'  " 

One  specialty  injured  by  a  violation  of  the  Sherman  Anti- 
Trust  Act  may  maintain  a  bill  to  enjoin  such  injury.  Bigelow 
v.  Calumet  &  Hecla  Mining  Co.,  155  Fed.  869;  same  case,  167 
Fed.  704.  Affirmed,  same  styled  case,  167  Fed.  721.  C.  C. 
A. 

§  254.  The  question  in  the  circuit  courts  of  appeal. — In 
Northern  Pacific  Ry.  Co.  v.  Pacific  Coast  Lumber  ^Manufacturers' 
Asso.,  165  Fed.  1,  CCA.         ,  the  following  facts  were 

before  the  circuit  court  of  appeals  for  the  Ninth  Circuit.  The 
carriers  engaged  in  transporting  lumber  from  Washington  to 
the  markets  of  the  middle  west  and  east  thereof  concurrently 
and  concertedly  gave  notice  of  a  considerable  advance  in  the 
rate  of  transportation  on  that  commodity.  The  Pacific  Coast 
Lumber  IMannfacturers'  Association,  in  behalf  of  the  shippers 
of  lumber  in  the  State  of  Washington,  filed  a  hill  in  1lic  circuit 
court  to  enjoin  the  advance.  The  carriers,  defendants,  were  not 
citizens  of  the  state  or  the  district  in  which  the  suit  was  filed, 


322  Power  of  Courts  of  United  States  [§  254. 

and  they  presented  the  question  of  jurisdiction  over  their  per- 
sons and  the  question  of  the  jurisdiction  of  the  court  over  the 
subject-matter.  These  contentions  of  the  defendants  were  over- 
ruled by  Judge  Tlanford,  "who,  upon  the  facts  proved,  enjoined 
the  collection  of  the  proposed  advance,  requiring,  however,  com- 
plainants to  give  bond  for  the  protection  of  the  carriers.  From 
this  interlocutory  order  an  appeal  was  taken  and  the  hearing 
came  on  before  Circuit  Judges  Gilbert,  Ross,  and  ]\Iorrow.  The 
court  of  appeals,  Judge  Ross  dissenting,  affirmed  the  lower 
court.  The  carriers  urged  two  principal  arguments  in  support 
of  the  contention  that  the  injunction  should  not  have  been 
granted.  The  first  of  these  was,  that  the  principles  of  the  Abi- 
lene Case  required  that  no  action  could  be  taken  by  a  court 
with  reference  to  a  rate  in  existence  or  proposed  prior  to  action 
by  the  commission ;  and,  second,  that"  to  enjoin  an  advance  would 
be  to  make  discriminatory  rates.  The  first  argument  was  dis- 
posed of  by  the  court  quoting  from  the  Tift  Case  the  statement 
of  ]\Ir.  Justice  McKenna  distinguishing  between  a  suit  at  law 
for  damages  and  a  suit  in  equity  to  enjoin  the  filing  or  enforce- 
ment of  a  schedule  of  unreasonable  rates.  After  discussing  the 
authorities,  the  court  said : 

"If  such  is  the  effect  of  the  act,  we  have  the  anomalous  situ- 
ation of  a  threatened  irreparable  injury  for  which  there  is  no 
remedy,  for  the  Interstate  Commerce  Commission  has  no  power 
to  enjoin  a  proposed  unreasonable  new  schedule  of  rates.  *  * 
******  rp^  what  does  the  reservation  of  legal  rem- 
edies in  section  22  of  the  act  refer  if  not  to  such  a  remedy  as 
this?  The  case  calls  for  the  exercise  of  a  power  which  is  in- 
herent in  a  court  of  chancery,  the  power  to  enjoin  a  proposed 
imlawful  act.  The  exercise  of  that  power  does  not  invade  the 
province  of  the  Interstate  Commerce  Commission.  It  prohibits 
the  enforcement  of  an  alleged  unreasonable  rate  only  until  the 
commission  shall  have  had  time  and  opportimity  to  adjudge  the 
question  of  its  unreasonableness.  To  afford  such  relief  is  not  to 
fix  rates  or  to  change  existing  rates,  or  to  decide  on  the  reason- 
ableness of  established  rates,  or  in  any  way  to  interfere  with 
the  functions  of  the  Interstate  Commerce  Commission,  nor  does 
it  result  in  the  confusion  or  derangement  of  rates  so  forcibly 
pointed  out  as  the  ground  of  decision  in  the  Abilene  Cotton  Oil 
Case. 


§  254:.]  TO  Prevent  an  Illeg^u.  Advance,  323 

The  second  objection  to  its  jurisdiction  was  answered  in  this 
way : 

' '  The  answer  to  this  is  that  all  persons  subject  to  the  payment 
of  the  advanced  rate  may,  if  they  choose,  obtain  the  benefits  of 
the  order  by  complying  with  its  conditions.  The  injunction 
makes  no  discrimination.  It  suspends  the  collection  of  the  in- 
creased rate  pending  the  decision  of  the  question  of  its  lawful- 
ness, upon  security  that  the  carrier  shall  not  suffer  ultimate 
loss." 

The  case  of  Union  Pacific  R.  Co.  v.  Oregon  and  "Washington 
Lumber  Manufacturers'  Asso.,  165  Fed.  13,  C.  C.  A.         , 

presented  the  same  facts  as  in  the  Northern  Pacific  Case,  supra, 
and  was  disposed  of  in  the  same  way. 

The  Kalispell  Lumber  Co.  Case,  157  Fed.  845,  supra,  was  re- 
versed by  the  circuit  court  of  appeals  of  the  Ninth  Circuit 
(Great  Northern  Ry.  Co.  v.  Kalispell  Lumber  Co.,  165  Fed.  25, 
CCA.        ). 

The  only  distinction  between  the  Washington  and  Oregon 
Cases  and  the  Kalispell  Case  was  that  in  the  first  two  the  injunc- 
tion was  granted  prior  to  the  rate  becoming  effective,  while  in 
the  latter  the  rate  had  become  effective  when  enjoined.  In  the 
latter  case  the  court  said: 

"When  a  schedule  of  rates  is  once  established  in  the  mode 
prescribed  by  the  statute,  a  former  rate  is  superseded  and  is 
no  longer  in  existence.  There  can  be  no  question  that  to  enjoin 
a  rate  already  established  and  in  operation  and  to  require  the 
carrier  to  observe  a  previously  established  rate  no  longer  in  ef- 
fect is  to  make  a  rate.  A  court  can  have  no  more  power  to  say 
that  the  carrier  shall  go  back  to  a  superseded  rate  than  it  has 
to  fix  a  wholly  new  rate.  In  either  case  the  court  establishes  a 
rate.  It  can  make  no  difference  that  the  newly  established  rate 
has  been  in  existence  but  a  short  time  before  the  application 
to  a  court  for  injunctive  relief.  If  a  court  may  enjoin  the  en- 
forcement of  a  rate  newly  established,  as  in  this  ease,  it  may 
on  the  same  grounds  enjoin  any  established  rate,  no  matter  how 
long  it  may  have  been  in  force,  and  may  compel  the  carrier  to 
observe  either  the  former  rate  or  a  new  rate.  The  result  is  to 
divest  the  Interstate  Commerce  Commission  of  its  power,  'which 
body  alone,'  said  the  court  in  the  Abilene  Cotton  Oil  Case,  'is 
vested  with  power  originally  to  entertain  proceedings  for  the 


324  PowKR  OK  CoiKTs  OF  Un[ted  States  [§254. 

alteration  of  an  ostal)]ishod  sdicdulc  heeaiise  tho  rates  fixed 
therein  are  unreasonable.'  " 

It  may  be  that  shippers  who,  wilhoul  ()l)jeetion.  allow  a  rate 
to  become  effective  might  be  guilty  of  such  laches  as  to  de- 
prive them  of  a  right  to  injunction,  but  the  reasoning  of  the  cir- 
cuit court  of  appeals  just  (pioted  seems  inconclusive.  INIr.  Jus- 
tice JMcKenna  spoke  of  the  "filing  or  enforcement"  of  a  rate 
in  the  same  connection  and  apparently  subject  to  the  same  rule 
of  law;  and  it  is  difficult  to  see  that  the  same  equitable  prin- 
ciples do  not  apply  to  a  constantly  recurring  injury  and  con- 
tinuing violation  of  a  right  causing  irreparable  damages  as  ap- 
plies to  a  like  kind  of  injury  when  only  threatened. 

The  ]\Iacon  Grocery  Co.  Case,  supra  (163  Fed.  738)  was  ap- 
pealed to  the  circuit  court  of  appeals  for  the  Fifth  Circuit.  The 
issues  presented  on  appeal  w-ere  the  same  as  those  presented  t(» 
the  circuit  court  of  appeals  for  the  Ninth  Circuit  in  the  Pacific 
Coast  Lumber  Manufacturers'  Case.  The  decision  of  the  two 
appellate  courts  are  directly  in  conflict.  In  each  case  one  judge 
dissented.  In  the  ]\Iacon  Grocery  Co.  Case  (sub  nom.  Atlantic 
C.  L.  R.  Co.  V.  Macon  Grocery  Co.,  166  Fed.  206,  C.  C.  A. 

),  Judge  McCormick,  delivering  the  opinion,  rests  the  case 
on  the  authority  of  the  Abilene  Case,  his  conclusion  being : 

"We  conclude  that  the  bill  in  this  case  presents  for  neces- 
sary consideration  the  proper  construction  of  the  act  to  regu- 
late commerce,  and,  therefore,  the  jurisdiction  of  the  court  does 
not  rest  solely  upon  the  diversity  of  the  citizenship  of  the  par- 
ties. We  conclude  that  the  sound  construction  of  the  different 
provisions  of  the  act  to  regulate  commerce  as  amended  and  now 
in  force  necessarily  forbids  the  exercise  of  the  jurisdiction  at- 
tempted to  be  invoked  by  the  bill  in  this  case." 

Judge  Pardee  concurring  says : 

"First.  I  doubt  if  the  lower  court  had  jurisdiction  ratione 
personae. 

"Second.  The  complainants  have  other  full  and  adequate 
remedies  through  the  Interstate  Commerce  Commission. 

"Third.  The  effect  of  an  injunction  in  this  case  would  be  to 
throw^  the  interstate  rates  of  the  whole  southeastern  territory  into 
disorder  and  confusion,  resulting  in  greater  evils  than  those 
suggested  and  alleged  in  the  present  bill. 

"Fourth.  The  initial  regulation  of  interstate  rates  is  placed 
by  law  in  the  hands  of  the  Interstate  Commerce  Commission,  and 


§  255.]  TO  Prevent  an  Illegal  Advance.  325 

the  courts  should  not  interfere  to  restrain,  compel  or  regulate, 
except  when  invoked  after  final  action  by  the  commission  and 
in  accordance  with  the  rules  prescribed  in  the  laws  regulating 
interstate  commerce. ' ' 

In  the  dissenting  opinion  of  Judge  Shelby,  he  relies  upon  the 
provision  of  section  22  of  the  act  reserving  existing  common  law 
and  statutorj^  remedies,  and  concludes  a  short  but  forcible  opin- 
ion by  saying: 

"The  clause  of  the  act  reserving  remedies  should  not  be  dis- 
regarded except  as  to  remedies  that  would  defeat  the  operation 
and  enforcement  of  the  act — remedies  that  are  absolutely  incon- 
sistent with  the  act.  The  remedy  sought  in  this  case,  and  the 
procedure  thus  far,  as  the  records  show,  are  in  harmony  with 
the  purposes  of  the  act.  The  cases  that  have  been  decided  since 
the  decision  of  the  Abilene  Case  show  that  the  rule  there  an- 
nounced does  not  abrogate  the  clause  quoted  from  section  22 
of  the  act,  nor  destroy  the  preventive  jurisdiction  of  courts  of 
equity;  and  that  such  jurisdiction  may  be  exercised  without  in 
any  way  invading  the  domain  of  the  Interstate  Commerce  Com- 
mission." 

This  case  is  now  pending  on  appeal  to  the  Supreme  Court. 

§  255.  Constitutional  and  statutory  provisions  affecting  the 
question. — Section  1  of  Article  III  of  the  Constitution  provides : 
"The  judicial  power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court,  and  in  such  inferior  courts  as  the  Congress 
may,  from  time  to  time,  ordain  and  establish."  Section  2  of 
the  same  article  provides:  "The  judicial  power  shall  extend  to 
all  eases,  in  law  or  equity,  arising  under  this  constitution,  the 
laws  of  the  United  States,  and  treaties  made,  or  which  shall 
be  made,  under  this  authority."  The  Fifth  Amendment  to  the 
Consitution  provides:  "No  person  shall  *  *  *  be  deprived 
of  life,  liberty  or  property,  without  due  process  of  law;  nor  shall 
private  property  be  taken  for  public  use,  without  just  compen- 
sation." 

Section  22  of  the  act  to  regulate  commerce  provides:  "Xoth- 
iiig  in  this  act  contained  sluili  in  any  way  abridge  or  alter  the 
remedies  now  existing  at  common  law  or  by  statute,  but  Ihc  pi'o- 
visions  of  this  act  are  in  addition  to  such  remedic^s. " 

The  right  to  ti"id<'  Mud  conscfiuciil  ly  lln'  riulil  lo  luive  prop- 
erty  tr;ins|)Oi'tcd   at   a    reasonable    rale   is   a    r'iglit   ol'   pro|)('rly. 


326  Power  of  Courts  of  United  States  [§  255. 

In  United  States  v.  :\Iieliigan  Central  E.  Co.,  322  Fed.  544,  545, 
Judge  Grosseup  says : 

"I  have  no  doubt  whatever,  respeeting  the  first  of  these  ques- 
tions. The  interstate  commerce  acts  confers  upon  each  citizen 
engaged  in  productive  industry,  whether  manufacturing,  com- 
mercial or  agricultural,  Avithin  the  districts  traversed  by  these 
roads,  the  substantive  right  of  having  his  product  transported 
by  the  common  carriers  of  the  country  at  rates  equal  to  the  rates 
obtained  by  his  competitor.  This  right  of  equal  treatment  at 
the  hands  of  the  common  carriers  is  as  much  a  right  of  property, 
and  affects  as  directly  his  interest  in  property  as  any  other  right 
of  property  that  he  may  have  under  law,  statutory  or  common. 
To  enforce  such  right,  there  must  be  somewhere  in  our  system 
of  jurisprudence,  the  remedy  found  essential.  If  an  action  at 
law  for  damages  is  inadequate,  a  remedy  in  equity  must  exist. 
The  jurisprudence  of  the  country  does  not  leave  him  remedi- 
less." 

Under  the  act  to  regulate  commerce,  all  charges  made  for  any 
service  rendered  or  to  be  rendered  in  the  transportation  of 
property,  or  in  connection  therewith,  shall  be  just  and  reason- 
able ;  and  every  unjust  and  unreasonable  charge  for  such  service, 
or  any  part  thereof,  is  prohibited  and  declared  to  be  unlawful. 
This  is  but  a  legislative  statement  of  the  common  law  on  the 
subject,  and  states  a  ''rule  which  is  as  old  as  the  existence  of 
common  carriers,  to  wit,  that  rates  must  be  reasonable. "  ^  At 
common  law  and  luider  the  interstate  commerce  act,  the  carriers 
fix  the  rates  and  the  shippers  must  pay  the  price  fixed  or  resort 
to  the  courts.  The  shipper  at  common  law  could  tender  freight, 
and  a  reasonable  charge  for  its  transportation,  and  by  equitable 
remedies  compel  the  common  carrier  to  accept  and  transport  it,° 
or  he  could  pay  the  charges  demanded  imder  protest,  and  sue  to 
recover  the  illegal  excess.  He  who  felt  aggrieved  by  a  charge 
could  always  invoke  the  aid  of  the  courts  to  protect  himself 
against  it.*  Further  declaratory  of  the  common  law,  it  is  pro- 
vided in  the  interstate  commerce  act  that  undue  and  unreason- 
able preference  or  advantage  to  any  particular  person,  com- 
pany, firm,  corporation,  or  locality,  or  any  particular  descrip- 

^Int.  Com.  Com.  v.  Cincinnati,  N.  » Tif t    v.    Southern    Ey.    Co.,    123 

O.  &  T.  P.  Ey.  Co.,  167  U.  S.  479,       Fed.  789  and  cases  cited. 
42  L.  Ed.  243,  17  Sup.  Ct.  896.  *  Chicago  etc.  Ey.  Co.  v.  Osborne, 

52  Fed.  912,  914. 


§  270.]  TO  Pre\^nt  an  Illegal  Advance.  327 

tion  of  traffic  is  prohibited.  Rates  are  intended  to  be  just  and 
reasonable,  and  equality  ''under  substantially  similar  circum- 
stances and  conditions"  is  provided  for,  pooling  is  prohibited 
and  tariffs  required  to  be  published. 

Under  sections,  eight,  nine,  thirteen  and  sixteen  of  the  inter- 
state commerce  act,  remedy  by  suit  for  damages  is  given  ship- 
pers where  there  has  been  a  violation  of  the  provisions  of  the  act. 
Section  twenty  of  the  act  provides :  ' '  That  the  circuit  and  dis- 
trict courts  of  the  United  States  shall  have  jurisdiction,  upon 
the  application  of  the  Attorney-General  of  the  United  States,  at 
the  request  of  the  commission,  alleging  a  failure  to  comply  with 
or  a  violation  of  any  of  the  provisions  of  said  act  to  regulate 
commerce,  or  of  any  act  supplementary  thereto  or  amendatory 
thereof,  by  any  common  carrier,  to  issue  a  writ  or  writs  of  man- 
damus commanding  such  common  carrier  to  comply  with  the 
provisions  of  said  acts,  or  any  of  them." 

Under  the  Hepburn  amendment,  the  commission  may,  after 
hearing,  fix  a  rate  for  the  future. 

"When  at  common  law  a  carrier  refused  to  accept  goods  for 
transportation  except  upon  an  unreasonable  charge,  or  when 
such  charge  was  made  for  transporting  after  receiving  the  goods 
the  shipper  had  a  right  of  action  for  damages.  The  right  was 
by  the  interstate  commerce  act,  section  twenty-two,  in  express 
terms  reserved. 

§  270.  Conclusion. — In  view  of  the  language  used  in  the 
Tift  Case,  it  can  not  be  said  that  the  Supreme  Court  has  defi- 
nitely determined  the  question  as  to  whether  or  not  the  United 
States  circuit  courts  may,  without  previous  action  by  the  com- 
mission, enjoin  an  illegal  rate  already  in  existence,  or  enjoin 
tlie  putting  in  effect  a  proposed  rate  claimed  to  be  illegal.  The 
Supreme  Court  does  hold  that  the  Abilene  Case  is  not  authority 
against  sucli  jurisdiction,  and  it  would  seem  that  a  stipulation 
of  counsel  could  not  confer  jurisdiction  on  a  court  unless  the 
court  at  least  had  jurisdiction  over  the  subject-matter.  The 
question  must  be  determined  by  the  Supreme  Court  and  no  more 
important  question  is  now  pending  before  that  great  tribunal. 

If  a  shipper  may  not  enjoin  an  inijust  advance  pending  a 
deteniiiiialion  l)y  the  conniiission  of  its  reasonableness,  liis  rem- 
edy is  clear]}'  inadef|uate  for  tlu;  injury  ho  may  suffer  from  the 
exaction  of  the  unjust  rate. 

Congress  has  ])een  urged  to  give  the;  commission  power  to  sus- 


328  Power  of  Courts  of  United  States  [§271. 

pend  an  advance.  The  Senate  Coimnittee  on  Interstate  Com- 
merce, Senate  bill  423,  report  No.  933,  Februarj^  8,  190!),  re- 
ported against  giving  such  power  to  the  commission.  One  of 
the  arguments  used  in  that  report  is  as  follows: 

"It  is  claimed  that  the  indefinite  suspension  of  the  rate  until 
final  hearing  is  to  deprive  the  carrier,  if  the  rate  advanced  is 
reasonable,  of  his  right  of  property  during  the  period  of  suspen- 
sion, without  having  given  it  any  opportunity  to  be  heard  prior 
to  the  act  of  suspension.  Due  process  of  law  must  precede,  and 
should  not  follow,  the  suspension.  To  set  aside  the  carriers'  act 
in  fixing  the  rate  pending  the  investigation  required  by  due 
process  of  law  is  to  deprive  the  carrier,  pro  tanto,  of  its  prop- 
erty right  to  charge  a  reasonable  rate.  The  fact  that  the  statute 
requires  an  investigation  after  the  suspension  of  the.  rate  does 
not  avoid  the  constitutional  inhibition,  as  that  provision  can 
only  be  satisfied  when  the  investigation  precedes  any  disturbance 
of  property  rights.  The  carrier  is  entitled  to  the  investigation 
before  it  is  restrained  in  the  exercise  of  its  property  rights;  the 
theory  of  the  amendment  suggested  is  that  the  shipper  is  entitled 
to  an  investigation  before  the  carrier  can  exercise  its  property 
rights." 

This  argument  would  not  apply  to  injimctions  granted  by 
courts  because  when  such  injunction  is  granted  "the  carrier  re- 
ceives an  investigation  before  it  is  restrained  in  the  exercise  of 
its  property  rights."  The  shipper  also  has  "an  investigation 
before  the  carrier  can  exercise"  the  power  to  deprive  him  of  the 
right  to  trade  in  such  a  way  that  the  remedy  is  inadequate  and 
the  damages  irreparable. 

§  271.  Venue  of  suits  to  enjoin  carriers  from  making  an  un- 
reasonable advance. — When  suit  is  brought  to  enjoin  carriers 
from  enforcing  an  luijust  or  illegal  rate,  to  make  eflPective  an 
order  it  is  usually  necessarj^  to  have  parties  defendant  who  are 
citizens  of  states  other  than  that  where  suit  is  pending.  Under 
such  circumstances  it  becomes  important  to  determine  the 
proper  venue.  ]\Iust  suit  be  brought  only  in  the  district  whereof 
the  defendant  is  an  inhabitant?"'  It  would  seem  not.  The  ju- 
diciary acts  do  not  restrict  the  jurisdiction  of  circuit  courts,  nor 
their  power  to  bring  in  parties  without  their  districts  where  ex- 

"25    Stat.    L.    434,    U.    S.    Comp.       Anno.  265. 
Stat.    1901,    p.    508,    4    Fed.    Stat. 


§271. 


TO  Prevent  an  Illeg^vl  Advance. 


329 


elusive  jurisdiction  is  created  and  conferred  upon  the  courts  of 
the  United  States  by  special  acts  of  Congress."  The  judiciary- 
acts  of  March  3,  1887,  and  August  13,  1888,  being  applicable 
only  to  cases  whereof  the  state  and  federal  courts  have  concur- 
rent jurisdiction. 

From  the  authorities  (see  section  200  ante)  suits  to  enjoin  an 
illegal  rate  on  interstate  commerce  are  suits  within  the  exclusive 
jurisdiction  of  the  federal  courts,  and,  being  so,  may  be  brought 
in  anv  district  where  the  defendants  mav  be  found  and  served.^^ 


"■  United  States  v.  Standard  Oil 
Co.,  152  Fed.  290. 

"  §  200  ante.  Yan  Patten  v.  Chi- 
cago etc.  Ey.  Co.,  74  Fed.  981; 
Toledo  etc.  Ey.  Co.  v.  Penn.  Co., 
.54  Fed.  730,  19  L.  E.  A.  387,  5  I. 
C.  E.  545,  22  IJ.  S.  App.  561; 
TTnited  States  v.  Mooney,  116  U. 
S.  104,  29  L.  Ed.  550,  6  Sup.  Ct. 
304;  Atkins  v.  Fiber  Disintegrating 
Co.,   18   Wall.   85   U.    S.   272,  21   L. 


Ed.  841 ;  Ee  Louisville  Underwri- 
ters. 134  U.  S.  488,  33  L.  Ed.  991, 
10  Sup.  Ct.  587;  Ee  Hohorst,  150 
U.  S.  653,  37  L.  Ed.  1211,  14  Sup. 
Ct.  221;  Westinghouse  Air  Brake 
Co.  V.  Great  N.  Ey.  Co.,  88  Fed. 
258,  31  C.  C.  A.  525 ;  Kalispell  Lum- 
ber Co.  V.  Great  N.  Ey.  Co.,  157 
Fed.  845;  Northern  Pac.  Ey.  Co.  v. 
Pacific  Coast  Lumber  Manufactur- 
ers' Assn.,  165  Fed.  1,  C.  C.  A. 


CHAPTER  VII. 

STATE  LAWS  OR  REGULATIONS  AFFECTING  INTER- 
STATE TRANSPORTATION. 

§  300.  Scope  of  chapter. 

301.  Eegulation  of  movement  of  trains.     Sunday  law. 

302.  Same  subject.     Speed  of  trains. 

303.  Same   subject.      Eequirement   that   trains   shall   stop   at   particular 

stations. 

304.  Same  subject.     Connections  with   other   carriers   and  with  private 

switch  tracks. 

305.  Demurrage  charges. 

306.  Furnishing  cars. 

307.  Separate  coach  laws. 

308.  Long  and  short  haul  clause  in  state  law. 

309.  State    laws    forbidding    the    consolidation    of    competing    common 

carriers. 

310.  Quarantine  laws  of  states. 

311.  Laws  to  promote  the  security  and  comfort  of  passengers. 

312.  State  regulation  of  carriers  and  their  employees. 

313.  Laws  limiting  or  enlarging  the  common  law  liability  of  carriers. 

314.  Penalties  for  failure  to  pay  claims. 

§  300.  Scope  of  chapter. — A  great  variety  of  causes  have 
arisen  involving  the  construction  of  the  commerce  clause  of  the 
Constitution  of  the  United  States.  The  subject  is  treated  fully 
in  Judson  on  Interstate  Commerce  and  other  similar  works.  The 
purpose  of  this  book  is  limited  to  interstate  transportation,  and 
in  this  chapter  will  be  discussed  those  eases  decided  by  the  Su- 
preme Court  of  the  United  States  in  which  were  involved  laws 
or  regulations  passed  by  state  legislatures  or  under  their  author- 
ity and  which,  directty  or  indirectly,  affected  interstate  trans- 
portation. 

It  may  be  stated,  as  a  general  rule,  that  the  proper  state  au- 
thorities, duly  acting,  may  pass  all  reasonable  laws  for  the  reg- 
ulation of  the  health,  happiness  and  safety  of  its  citizens;  and 
such  laws  and  regulations  are  not  invalid  merely  because  they 
may  incidentally  affect  interstate  commerce.  It  may  be  further 
stated  that  the  mere  existence  of  power  in  Congress  to  regulate 

330 


§301.]  Interstate  Commerce.  331 

interstate  commerce  does  not  exclude  the  states  from  the  exer- 
cise of  power  over  such  commerce.  In  the  absence  of  congres- 
sional legislation,  or  in  the  absence  of  action  by  the  Interstate 
Commerce  Commission  where  the  matter  has  been  delegated  to 
it,  states' may  legislate  affecting  interstate  commerce. 

In  Cleveland,  C,  C.  &  St.  L.  R.  Co.  v.  Illinois/  Mr.  Justice 
Bro-\\Ta  reviews  the  authorities  prior  thereto.    He  states  this  rule : 

"Few  classes  of  cases  have  become  more  common  of  recent 
years  than  those  wherein  the  police  power  of  the  state  over  ve- 
hicles of  interstate  commerce  has  been  drawn  in  question.  That 
such  power  exists  and  will  be  enforced,  notwithstanding  the  con- 
stitutional authority  of  Congress  to  regulate  such  commerce,  is 
evident  from  the  large  number  of  cases  in  which  we  have  sus- 
tained the  validity  of  local  laws  designed  to  secure  the  safety 
and  comfort  of  passengers,  employees,  persons  crossing  railway 
tracks,  and  adjacent  property  owners,  as  well  as  other  regula- 
tions intended  for  the  public  good." 

After  discussing  the  authorities,  he  says : 

"AYith  no  disposition  whatever  to  vary  or  qualify  the  cases 
above  cited,  neither  the  conclusions  of  the  court  nor  the  tenor 
of  the  opinions  are  opposed  to  the  principle  which  we  hold  to 
in  this  case,  that,  after  all  local  conditions  have  been  adeciuately 
met,  railways  have  the  legal  right  to  adopt  special  provisions 
for  through  traffic,  and  legislative  interference  therewith  is  un- 
reasonable, and  an  infringement  upon  that  provision  of  the  con- 
stitution which  we  have  held  requires  that  commerce  between  the 
states  shall  be  free  and  unobstructed." 

§  301.  Regulation  of  the  movement  of  trains.  Sunday  Law. — 
The  legislature  of  the  State  of  Georgia  prohibited  the  running 
of  freight  trains  on  any  road  in  the  state  on  Sunday.  There 
were  certain  exceptions  referring  to  trains  carrying  live  stock 
and  delayed  trains.  A  conviction  being  had  under  the  statute, 
and  an  affirmance  thereof  by  the  highest  state  court,  the  case 
Avas  appealed  to  the  Supreme  Court.  That  court  sustained  the 
Georgia  statute  (Hennington  v.  Georgia,  163  U.  S.  299,  41  L. 
Ed.  166,  16  Sup.  Ct.  1086).  Mr.  Justice  Harlan,  concluding  the 
opinion,  said : 

"The  statute  of  Georgia  is  not  directed  against  interstate  com- 

»177  U.  S.  514,  44  L.  Ed.  868,  R.  Co.  v.  Larabce  Mills,  211  U.  S. 
20  Sup.  Ct.  722.     See  also  Mo.  Pac.      612,  53  L.  Ed.        ,  29  Sup.  Ct. 


332  State  Laws  Affecting  [  §  302. 

merce.  It  establishes  a  rule  of  eivil  conduct  applicable  iilike  to 
all  freight  trains,  domestic  as  well  as  interstate.  It  applies  to 
the  transportation  of  interstate  freight  the  same  rule  precisely 
that  it  applies  to  the  transportation  of  domestic  freight.  And  it 
places  the  business  of  transporting  freight  in  the  same  category 
as  all  other  secular  liusiness.  It  simply  declares  that,  on  and 
during  the  day  fixed  by  law  as  a  day  of  rest  for  all  people  within 
the  limits  of  the  state  from  toil  and  labor  incident  to  their  call- 
ings, the  transportation  of  freight  shall  be  suspended. 

"We  are  of  the  opinion  that  such  a  law,  although  in  a  limited 
degree  affecting  interstate  commerce,  is  not  for  that  reason  a 
needless  intrusion  upon  the  domain  of  federal  jurisdiction,  nor 
strictly  a  regulation  of  interstate  commerce,  but,  considered  in 
its  own  nature,  is  an  ordinary  police  regulation  designed  to  se- 
cure the  well  being  and  to  promote  the  general  welfare  of  the 
people  within  the  state  by  which  it  was  established,  and  there- 
fore not  invalid  by  force  alone  of  the  Constitution  of  the  United 
States." 

§  302.  Same  subject.  Speed  of  trains. — In  the  absence  of  leg- 
islation by  Congress,  a  city  ordinance  regulating  the  speed  limit 
of  trains  within  the  city  limits  is  not  as  to  interstate  trains  un- 
constitutional. This  law  was  announced  by  Mr.  Justice  Brewer 
(Erb  V.  Morasch,  177  IT.  S.  584,  44  L.  Ed.  897,  20  Sup.  Ct.  819), 
Avho  said : 

"A  city,  when  authorized  by  the  legislature,  may  regulate  the 
speed  of  railroad  trains  within  the  city  limits.  Richmond,  F. 
&  P.  R.  Co.  V.  Richmond.  96  U.  S.  521,  24  L.  Ed.  734;  Cleveland, 
C.  C.  &  St.  L.  R.  Co.  V.  Illinois  ex  rel.  Jett,  177  U.  S.  514,  44  L. 
Ed.  868,  20  Sup.  Ct.  Rep.  722.  Such  act  is,  even  to  interstate 
trains,  one  only  indirectly  affecting  interstate  commerce,  and  is 
within  the  power  of  the  state  until  at  least  Congress  shall  take 
action  in  the  matter." 

§  303.  Same  subject.  Requirement  that  trains  shall  stop  at 
particular  stations. — In  determining  whether  or  not  a  state  stat- 
ute or  a  regulation  of  a  state  commission  indirectly  affecting 
interstate  commerce  is  valid,  the  Supreme  Court  looks  to  the 
facts  to  see  whether  or  not  the  regulation  is  reasonable.  To  re- 
quire a  train  to  run  at  a  low  rate  of  speed  through  a  city  may 
cause  more  delay  than  to  require  such  train  to  stop  at  a  particu- 
lar station  three  minutes.  We  have  just  seen  in  the  preceding 
section  that  the  limitation  of  speed  was  held  legal,  this  was  be- 


§  303.]  Interstate  Commerce.  333 

cause  the  regulation  was  necessary  and  reasonable.  A  regula- 
tion, however,  to  stop  an  interstate  train  at  a  point  where  rea- 
sonable facilities  for  travel  already  exist  is  unreasonable  and 
an  invalid  attempt  to  regulate  interstate  commerce.  This  was 
held  in  Mississippi  Railroad  Commission  v.  111.  Cent.  R.  Co., 
203  U.  S.  335,  51  L.  Ed.  209,  27  Sup.  Ct.  90,  and  the  holding 
was  correct,  because  the  regulation  was  not  a  reasonable  exer- 
cise of  the  police  power  of  the  state.  The  opinion  written  by 
Mr.  Justice  Peckham  concludes : 

"The  transportation  of  passengers  on  interstate  trains  as 
rapidly  as  can  with  safety  be  done  is  the  inexorable  demand  of 
the  public  who  use  such  trains.  Competition  between  great 
trunk  lines  is  fierce  and  at  times  bitter.  Each  line  must  do  its 
best  even  to  obtain  its  fair  share  of  the  transportation  between 
states,  both  of  passengers  and  freight.  A  wholly  unnecessary, 
even  though  a  small,  obstacle,  ought  not,  in  fairness,  to  be  placed 
in  the  way  of  an  interstate  road,  which  may  thus  be  unable  to 
meet  the  competition  of  its  rivals.  We  by  no  means  intend  to 
impair  the  strength  of  the  previous  decisions  of  this  court  on 
the  subject,  nor  to  assume  that  the  interstate  transportation, 
either  of  passengers  or  freight,  is  to  be  regarded  as  overshadow- 
ing the  rights  of  the  residents  of  the  state  through  which  the 
railroad  passes  to  adequate  railroad  facilities.  Both  claims  are 
to  be  considered,  and  after  the  wants  of  the  residents  within  a 
state  or  locality  through  which  the  road  passes  have  been  ade- 
quately supplied,  regard  l)eing  had  to  all  the  facts  bearing  upon 
the  subject,  they  ought  not  to  be  permitted  to  demand  more,  at 
the  cost  of  the  ability  of  the  road  to  successfully  compete  with 
its  rivals  in  the  transportation  of  interstate  passengers  and 
freight. ' ' 

A  requirement  of  the  law  of  the  State  of  Illinois  that  an  in- 
terstate mail  and  passenger  train  should  run  to  a  county  seat 
three  and  a  half  miles  off'  the  main  line  is  an  unconstitutional 
interference  and  obstruction  of  interstate  connneree.  Illinois 
Central  R.  Co.  v.  Illinois,  163  U.  S.  142,  41  L.  Ed.  107,  16  Sup. 
Ct.  1096.  A  purely  loc.il  trMiii,  liowevcr,  tliough  cari-ying  pas- 
sengers and  mail  destined  to  points  beyond  tlie  state,  may  prop- 
erly be  ref|uired  to  stop  at  county  seats  directly  on  the  line 
traversed  by  such  train.  Cladson  v.  Miiuicsola,  166  T.  S.  427, 
41  L.  Ed.  1064,  17  Sup.  Ct.  627. 

The  Mississippi  Case,  supra,  niciy,  upon  u  casual  reading,  ap- 


334  State  Laws  Affecting  [§  304. 

pear  in  conflict  with  the  case  of  Lake  S.  &  >\I.  S.  R.  Co.  v.  Ohio, 
173  U.  S.  285,  43  L.  Ed.  702,  19  Sup.  Ct.  465.  The  causes,  how- 
ever, are  easily  distinguishable.  In  the  Mississippi  case  the 
facts  showed  that  there  Avere  reasonable  facilities  for  travel  with- 
out enforcing  the  order  therein  under  investigation.  In  the 
Ohio  Case  all  trains  up  to  three  each  way  each  day  were  required 
to  stop.  Ultimately  the  question  of  whether  or  not  a  particular 
police  regulation  is  reasonable  must  be  passed  upon  by  the 
courts  and  in  one  case  the  Supreme  Court  held  the  regulation  to 
stop  unnecessary  and,  therefore,  unreasonable.  In  the  other, 
under  the  facts,  the  regulation  was  necessary  and,  therefore,  rea- 
sonable. The  Ohio  case  cites  and  discusses  the  authorities,  and 
the  conclusion  of  the  opinion  makes  reference  to  the  rule  adopted 
subsequentl}''  in  the  Mississippi  case.  This  conclusion  is  as  fol- 
lows : 

"Our  present  judgment  has  reference  only  to  the  case  before 
us,  and  when  other  cases  arise  in  which  local  statutes  are  al- 
leged not  to  be  legitimate  exertions  of  the  police  powers  of  the 
state,  but  to  infringe  upon  national  authority,  it  can  then  be 
determined  whether  they  are  to  be  controlled  by  the  decision  now 
rendered.  It  would  be  impracticable,  as  well  as  unwise,  to  at- 
tempt to  lay  down  any  rule  that  would  govern  every  conceivable 
case  that  might  be  suggested  by  ingenious  minds." 

The  Mississippi  case  was  followed  upon  similar  facts  in  At- 
lantic C.  L.  E.  Co.  V.  Wharton,  207  V.  S.  328,  52  L.  Ed.  230,  28 
Sup.  Ct.  121. 

§  304.  Same  subject.  Connections  with  other  carriers  and 
with  private  switch  tracks. — Where  an  order  of  a  state  tribunal 
affects  only  intrastate  commerce,  the  question  of  whether  or  not 
it  was  arbitrary  and  unreasonable  is  for  the  state  courts,  and  it 
is  proper  to  require  a  carrier  to  furnish  facilities  for  making  the 
necessary  connections  for  passengers;  even,  if,  in  doing  so,  that 
service  must  be  furnished  at  a  loss."" 

A  regulation  requiring  a  carrier  to  deliver  cars  beyond  its 
tracks  to  a  private  switch  is  illegal.^  In  jMcNeill  v.  Southern  Ry. 
Co.,  cited  note,  supra,  the  North  Carolina  Corporation   Com- 

=  Atlantic   C.   L.   E.   Co.   v.   North  113,   55   C.    C.   A.   63,   63   L.   E.   A. 

Carolina   Corp.   Com.,    206   U.    S.    1,  213;    McNeill   v.    So.    Ey.    Co.,    202 

51  L.  Efl.  933,  27  Sup.  Ct.  585.  U.  S.  543,  50  L.  Ed.  1142,  26  Sup. 

3  Central     Stock     Yards     Co.     v  Ct.  722. 
Louisville    &    N.    E.    Co.,    118    Ted. 


§  304.]  Interstate  Commerce.  335 

mission  entered  an  order  requiring  the  railway  company,  upon 
payment  of  freight  charges,  to  make  delivery  of  the  cars  beyond 
its  right  of  way  on  the  siding  of  a  private  coal  company.  The 
order  Avas  held  invalid  as  "amounting  to  an  unlawful  inter- 
ference with  interstate  commerce," 

In  the  Jacobson  Case,^  under  authority  of  a  law  of  Minne- 
sota, the  State  Railroad  Commission  directed,  and  the,  state 
courts  enforced,  a  connection  between  two  common  carriers  of 
the  state.  The  carriers  contended  that  the  order  was  void  as  an 
unreasonable  regulation  of  commerce,  and  that  in  requiring  the 
construction  of  the  connecting  track,  the  order  and  judgment 
took  property  without  due  process  of  law.  In  the  brief  the  con- 
tention was  made  that  the  law  upon  which  the  proceedings  were 
had  was  "an  ill-disguised  attempt  to  control  and  regulate  inter- 
state traffic."  The  court  did  not  construe  the  order  as  affecting 
directly  interstate  commerce  and  overruled  the  other  contention 
of  the  plaintiff  in  error.    The  opinion  concludes  as  follows : 

"In  this  case  the  provision  is  a  manifestly  reasonable  one, 
tending  directly  to  the  accommodation  of  the  public,  and  in  a 
manner  not  substantialh^  or  unreasonably  detrimental  to  the 
ultimate  interests  of  the  corporation  itself. 

"Although  to  carry  out  the  judgment  may  require  the  exer- 
cise by  the  plaintiff  in  error  of  the  power  of  eminent  domain, 
and  will  also  result  in  some,  comparatively  speaking,  small  ex- 
pense, yet  neither  fact  furnishes  an  answer  to  the  application  of 
defendant  in  error." 

The  Jacobson  Case  differs  from  the  McNeill  Case  in  that  in 
the  ]\IcNeill  Case  there  was  an  order  to  connect  with  a  private 
plant,  while  in  the  Jacobson  Case  two  state  common  carriers  were 
directed  to  make  a  physical  connection.  In  the  Jacobson  Case 
the  regulation  only  incidentally  affected  interstate  commerce ; 
in  the  ^McNeill  Case  the  regulation  had  direct  reference  to  inter- 
state commerce.  In  discussing  the  ]\IcNeill  Case  Mr.  Justice 
White  said: 

"The  cars  of  coal  not  having  been  delivered  to  the  consignee, 
but  remaining  on  the  tracks  of  the  railway  company  in  the  con- 
dition in  which  they  had  been  originally  brought  into  North 
Carolina  from  points  outside  of  that  state,  it  follows  that  the 

*  Wisconsin,    M.    &    P.    R.    Co.    v.       191,  21  Sup.  Ct.  115. 
Jacobson,  179  U.  S.  287,  45  L.  Ed. 


336  State  Laws  A FFi'X'TixG  [§304. 

interstate  transportation  of  the  property  had  not  been  completed 
when  the  corporation  commission  made  the  order  complained 
of." 

These  distinctions  clearly  differentiate  the  two  cases,  and 
make  the  respective  opinions  harmonious. 

The  recent  case  of  the  Larabee  ]Mills°  is  interesting  and  in- 
structive. In  that  ease  the  Supreme  Court  of  Kansas  com- 
pelled, by  mandamus,  the  Missouri  Pacific  Railway  Company 
to  deliver  cars  from  another  road  over  existing  transfer  tracks 
to  the  mill  of  the  Larabee  j\Iills  to  enable  the  niill  to  ship  out  its 
manufactured  product,  three-fifths  of  which  went  to  points  out- 
side the  State  of  Kansas.  It  appeared  that  the  railway  company 
accorded  similar  privileges  to  other  flour  mills  along  its  right 
of  way.  In  the  Supreme  Court  of  the  United  States  the  railroad 
relied  strongly  on  the  ]\IcNeill  Case.  The  two  cases  are  much 
alike.  In  the  ]\IcNeill  Case  the  delivery  of  loaded  cars  was 
sought  over  a  private  track  to  a  coal  yard,  who  built  the  track 
is  not  disclosed.  In  the  Larabee  ]\Iills  Case  the  delivery  of  empty 
cars  was  sought  over  a  track,  the  ownership  of  which  is  not  dis- 
closed, but  which  was  essentially  for  the  private  use  of  the  mill. 
In  the  McNeill  Case  it  appears  that  the  coal  cars  were  brought 
from  another  state,  though  it  must  have  been  true  that  at  times 
the  spur  track  was  used  in  intrastate  transportation ;  in  the 
Larabee  Mills  Case  there  was  both  inter  and  intrastate  trans- 
portation from  the  mill.  Thus  far  there  seems  to  be  no  legal 
distinction  between  the  two  cases.  There  is,  however,  one  clear 
distinction.  The  order  in  the  Larabee  Mills  Case  was  made  to 
prevent  discrimination ;  such  fact  does  not  appear  in  the  ^IcNeill 
Case.  In  the  Larabee  ]Mills  Case  it  was  contended  by  the  rail- 
road ' '  that  no  dut.y  was  imposed  on  the  railroad  company  by  act 
of  the  legislature  or  mandate  of  commission  or  other  adminis- 
trative board."    To  this  argument  ^Ir.  Justice  Brewer  answered: 

''Xo  legislative  enactment,  no  special  mandate  from  any  com- 
mission, or  other  administrative  board  was  necessary,  for  the 
duty  arose  from  the  fact  that  it  was  a  common  carrier.  This  lies 
at  the  foundation  of  the  law  of  common  carriers.  Whenever  one 
engages  in  that  business  the  obligation  of  equal  service  to  all 
arises,  and  that  obligation,  irrespective  of  legislative  action  or 

=  Missouri   Pac.   Ey.    Co.   v.   Lara-       5.3  L.  Ed.         ,  29  Sup.  Ct. 
bee  Flour  Mills  Co.,  211  IT.  S.  612, 


§  304.]  Interstate  Commerce.  337 

special  mandate,  can  be  enforced  by  the  courts.  ***** 
All  these  questions  are  disposed  of  by  one  well-established  prop- 
osition, and  that  is  that  a  party  engaging  in  the  business  of  a 
common  carrier  is  bound  to  treat  all  shippers  alike  and  can  be 
compelled  to  do  so  by  mandamus  or  other  proper  writ. ' ' 

What  then  the  Supreme  Court  of  Kansas  did  was  to  enforce 
the  common  law  duty  of  the  carrier  to  treat  all  shippers  alike. 
This  it  had  the  right  to  do  prior  to  action  by  Congress  or  the 
commission  appointed  by  Congress,  even  though  in  doing  so  in- 
terstate commerce  might  be  affected.  This  principle  jMr.  Justice 
Brewer  states: 

''This  case  does  not  rest  upon  any  distinction  between  inter- 
state commerce  and  that  wholly  within  the  state.  It  is  the  con- 
tention of  counsel  for  the  mill  company  that  it  comes  within  the 
oft-repeated  rule  that  the  state,  in  the  absence  of  express  action 
hy  Congress,  may  regulate  many  matters  which  indirectly  affect 
interstate  commerce,  but  which  are  for  the  comfort  and  con- 
venience of  its  citizens.  Of  the  existence  of  such  a  rule  there  can 
be  no  question.  It  is  settled  and  illustrated  by  many  cases.  * 
**#*###*  rpi^g  mere  grant  by  Congress  to  the 
commission  of  certain  national  powers  in  respect  to  interstate 
commerce  does  not  of  itself  and  in  the  absence  of  action  by  the 
commission  interfere  with  the  authority  of  the  state  to  make 
those  regulations  conducive  to  the  welfare  and  convenience  of 
its  citizens." 

In  discussing  the  McNeill  Case  Mr.  Justice  Brewer  said: 

"There  are  many  points  of  resemblance  between  that  case 
and  this,  but  there  is  this  substantial  distinction :  In  that  was 
presented  and  determined  solely  the  power  of  a  state  commission 
to  make  orders  respecting  the  delivery  of  cars  engaged  in  in- 
terstate cornmerce  beyond  the  right  of  way  of  the  carrier  and 
to  a  private  siding — an  order  which  affected  the  movement  of 
llie  cars  prior  to  the  completion  of  the  transportation,  while  here 
is  presented,  as  hereinbefore  indicated,  the  question  of  the  power 
of  the  state  to  prevent  discrimination  between  shippers,  and  the 
common  law  duty  resting  upon  a  carrier  was  enforced.  This 
common-law  duty,  the  state,  in  a  case  like  the  present  may,  at 
least  in  the  absence  of  congressional  action,  compel  a  carrier 
to  discharge." 

^Ir.  Justice  Moody  dissented,  placing  his  dissent  on  the  IMc- 


338  State  Laws  Affecting  [  §  305. 

Neill  Case,  between  which  and  the  instant  case  he  saw  no  legal 
distinction. 

§  305.  Demurrage  charges. — The  Interstate  Commerce  Com- 
mission has  provided  regulations  in  tariff  schedule  15-A  and  in 
conference  ruling  as  to  demurrage  charges.  These  regulations 
do  not  fix  a  general  rule,  but  require  the  tariffs  to  state  the 
charges  and  compels  their  collection.  The  tariff'  rules  are  as 
follows : 

"The  act  requires  that  carriers  shall  publish,  post,  and  file 
'all  terminal  charges  *  *  *  *  which  in  anywise  change, 
affect,  or  determine  *  *  *  *  the  value  of  the  service  ren- 
dered to  the  passenger,  shipper  or  consignee,'  and  all  such 
charges  become  a  part  of  the  'rates,  fares,  and  charges'  which 
the  carriers  are  required  to  demand,  collect,  and  retain.  Such 
terminal  charges  include  demurrage  charges.    Adopted  May  12, 

"On  IMarch  16,  1908,  the  commission  decided  that  demurrage 
rules  and  charges  applicable  to  interstate  shipments  are  govern- 
ed by  the  act  to  regulate  commerce,  and  therefore  are  within  its 
jurisdiction  and  not  wdthin  the  jurisdiction  of  state  authorities. 
Any  other  view  would  open  a  wide  door  for  the  use  of  such  rules 
and  charges  to  effect  the  discrimination  which  the  act  pro- 
hibits. 

"Tariffs  must  be  observed. — Demurrage  rules  and  charges 
must  be  observed  as  strictly  as  transportation  rules  and  charges. 
The  commission  can  not,  therefore,  recognize  as  lawful  any  rule 
governing  demurrage  the  application  of  which  is  dependent  upon 
the  judgment  or  discretion  of  some  person,  or  which  provides 
for  exemption  therefrom  in  certain  exigencies  in  the  creation  of 
which  the  carrier  has  no  part.  Interstate  tariffs  containing  such 
rules  must  be  corrected  or  canceled." 

On  February  3,  1908,  the  commission  made  this  ruling : 

"32.  Demurrage  Charges.  The  delivering  carrier  is  under 
obligation  to  collect  demurrage  charges  assessed  by  it,  although 
such  charges  may  have  accrued  as  the  result  of  error  on  the  part 
of  another  carrier. 

"The  shipper  should  pay  the  lawfully  published  rate  via  the 
route  over  which  the  shipment  moved,  pending  dispute,  and 
then  make  claim  for  refund.  The  commission,  in  the  adjust- 
ment of  misrouting  claims,  Avill  not  ordinarily  include  demur- 
rage charges. 


§  306.]  Interstate  Commerce.  339 

''"When  the  delivering  carrier  demands  more  than  the  lawful 
rate,  the  consignee  is  released  from  the  obligation  to  pay  demur- 
rage charges  accruing  during  the  pendency  of  the  dispute  as  to 
the  lawful  rate. 

On  March  16,  1908,  the  commission  issued  this  conference 
ruling : 

"54.  Demurrage  on  Interstate  Shipments.  Questions  of  de- 
murrage and  car  service  on  interstate  shipments  are  within  the 
jurisdiction  of  the  Interstate  Commerce  Commission,  which  does 
not  concur  in  the  view  that  such  matters,  even  when  pertaining 
to  interstate  shipments,  are  within  the  control  of  state  commis- 
sions. ' ' 

This  ruling  is  awkwardly  expressed.  It  means  that  the  ques- 
tion is  within  the  jurisdiction  of  the  Interstate  Conunerce  Com- 
mission, though  contention  has  been  made  that  state  commis- 
sions may  control  questions  of  demurrage  ''even  when  pertain- 
ing to  interstate  shipments." 

Under  the  rule  of  law  that  when  the  federal  government  has 
acted  on  a  particular  question  relating  to  interstate  commerce 
the  state  can  not  act,  all  questions  pertaining  to  demurrage  on 
interstate  shipments  would  be  controlled  by  the  federal  author- 
ities. 

Demurrage  on  purely  intrastate  shipments  could  be  controlled 
by  the  state  authorities.^ 

§  306.  Furnishing  cars. — It  is  the  duty  of  each  common  car- 
rier to  furnish  cars  to  the  extent  of  its  ability  for  the  movement 
of  all  freight,  such  cars  to  be  furnished  without  discrimination. 
Notwithstanding  the  fact  that  discrimination  is  prohibted  by 
the  interstate  commerce  act,  it  would  seem  that  a  state  might 
make  a  reasonable  regulation  fixing  the  specific  rules  relating  to 
furnishing  cars  upon  demand.  If  such  rules  recognized  the  fact 
that  carriers  must  furnish  to  all  alike  and  allowed  all  reasonable 
excuses  for  failure  to  comply  therewith,  the  rules  would  be 
valid. 

The  Texas  legislature  passed  a  law  prescribing  rules  under 
which  carriers  should  furnish  cars  to  shippers.  A  penalty  was 
fixed  as  follows : 

"When    cars   are   applied   for  under  the   provisions  of  this 

"  Houston  &  T.  C.  R.  Co.  v.  Mayes,      Sup.  Ct.  491. 
201  U.   S.  321,  50  L.   Ed.   772,   26 


340  State  Laws  Affecting  [§  306. 

chapter,  if  they  are  not  furnished  the  railway  company  so  fail- 
ing to  furnish  them  shall  forfeit  to  the  party  or  parties  so  ap- 
plying for  them  the  sum  of  $25  per  day  for  each  car  failed  to  be 
furnished,  to  be  recovered  in  any  court  of  competent  jurisdic- 
tion, and  all  actual  damages  such  applicant  may  sustain." 

The  only  excuse  that  the  carrier  could  give  to  escape  the  pen- 
alty was  "strikes  or  other  public  calamity."  The  Texas  Court 
of  Civil  Appeals  having  sustained  a  judgment  for  a  penalty 
under  the  statute,'  the  cause  was  appealed  to  the  Supreme  Court, 
where  that  court  determined  the  question  of  whether  or  not  the 
regulation  was  reasonable,  as  it  had  a  right  to  do,  the  regulation 
affecting  interstate  commerce.  The  Texas  statute  was  held  void 
as  being  an  unreasonable  regulation  of  interstate  commerce.  ]\Ir. 
Justice  BroMH,  delivering  the  opinion,  said:^ 

''"While  there  is  much  to  be  said  in  favor  of  laws  requiring 
railroads  to  furnish  adequate  facilities  for  the  transportation  of 
both  freight  and  passengers,  and  to  regulate  the  general  subject 
of  speed,  length,  and  frequency  of  stops,  for  the  heating,  light- 
ing, and  ventilation  of  passenger  ears,  the  furnishing  of  food 
and  water  to  cattle  and  other  live  stock,  we  think  an  absolute 
requirement  that  a  railroad  shall  furnish  a  certain  number  of 
ears  at  a  specified  day,  regardless  of  every  other  consideration 
except  strikes  and  other  public  calamities,  transcends  the  police 
power  of  the  state,  and  amoimts  to  a  burden  upon  interstate  com- 
merce. It  makes  no  exception  in  cases  of  a  sudden  congestion  of 
traffic,  an  actual  inability  to  furnish  cars  by  reason  of  their  tem- 
porary and  unavoidable  detention  in  other  states,  or  in  other 
places  within  the  same  state.  It  makes  no  allowance  for  inter- 
ference of  traffic  occasioned  by  wrecks  or  other  accidents  upon 
the  same  or  other  roads,  involving  a  detention  of  traffic,  the 
breaking  of  bridges,  accidental  fires,  washouts,  or  other  unavoid- 
able consequences  of  heavy  weather." 

Had  the  regulation  allowed  all  proper  excuses  for  failing  to 
furnish  the  cars,  it  would  have  been  reasonable  and,  therefore, 
valid.    In  concluding  the  opinion  IMr.  Justice  Bro^\'n  said : 

''Although  it  may  be  admitted  that  the  statute  is  not  far 
from  the  line  of  proper  police  regulation,  we  think  that  sufficient 

^  Houston  &  T.  C.  E.  Co.  v.  Mayes,  201  U.   S.   321,   50  L.   Ed.   772,  26 

36   Tex.   Civ.   App.   606,   609,   83   S.  Sup.  Ct.  491.     See  also  Southern  Ey. 

W.  53,  55.  Co.  V.  Melton,       Ga.         ,  65  S.  E. 

« Houston  &  T.  C.  E.  Co.  v,  Mayes,  665. 


§  307.]  Interstate  Commerce.  341 

allowance  is  not  made  for  the  practical  difficulties  in  the  admin- 
istration of  the  law,  and  that,  as  applied  to  interstate  commerce, 
it  transcends  the  legitimate  powers  of  the  legislature." 

§  307.  Separate  coach  laws. — The  statute  of  Louisiana,  which, 
as  construed  by  the  courts  of  that  state,  compelled  common  car- 
riers to  receive,  in  apartments  set  aside  for  whites  only,  negro 
passengers  was  held  by  the  Supreme  Court  to  be  invalid  in  so 
far  as  it  affected  interstate  commerce."  The  court  cpioted  from 
the  opinion  of  Mr.  Justice  Field,  in  AVelton  v.  ^Missouri,'"  to  the 
effect  that,  "inaction  (by  Congress)  *  *  *  *  ig  equivalent 
to  a  declaration  that  interstate  commerce  shall  remain  free  and 
untrammeled, ' '  and  said : 

"Applying  that  principle  to  the  circumstances  of  this  case, 
congressional  inaction  left  Benson  at  liberty  to  adopt  such  rea- 
sonable rules  and  regulations  for  the  disposition  of  passengers 
upon  his  boat,  while  pursuing  her  voyage  within  Louisiana  or 
without,  as  seemed  to  him  most  for  the  interest  of  all  concerned. 
The  statute  under  which  this  suit  is  brought,  as  construed  by 
the  state  court,  seeks  to  take  away  from  him  that  power  so  long 
as  he  is  within  Louisiana ;  and  while  recognizing  to  the  fullest 
extent  the  principle  which  sustains  a  statute,  unless  its  uncon- 
situtionality  is  clearly  established,  we  think  this  statute,  to  the 
extent  that  it  requires  those  engaged  in  the  transportation  of 
passengers  among  the  states  to  carry  colored  passengers  in 
Louisiana  in  the  same  cabin  with  whites,  is  unconstitutional  and 
void." 

"While  this  decision  has  been  criticised  by  text  book  writers, 
it  is  sound  in  principle.  Carriers  may  not  imjustly  discriminate 
between  those  who  patronize  them,  but  they  are  free,  subject  to 
that  rule  and  the  further  one  that  charges  must  not  be  unrea- 
sonable, to  regulate  the  general  conduct  of  their  business.  It 
can  not  be  held  to  be  an  unjust  discrimination  to  require  whites 
and  negroes  to  ride  in  separate  compartments  of  a  public  con- 
veyance, the  accommodation  being  equal.  For  the  negro  to  con- 
tend he  is  discriminated  against  in  favor  of  the  white  man  would 
be  a  contention  on  his  part  of  inferiority  to  the  white  man.  The 
separation  of  equals  discriminates  in  favor  of  neither.  Whatever 
may  be  said  as  to  the  actual  inferiority  of  the  negro,  he  is,  undei 
tlie  law,  entitled  to  equal  rights  with  tlic  other  races. 

"Tlall  V.  DeCuir.  95  U.  S.  5  Otto  '» Wclton    v.    Missouri,    91    U.    S. 

48.J,  l.'4  ]..   J-M.  547.  275,  282,  2.3  L.  Ed.  347,  350. 


3-42  State  Laws  Affecting  [§  307. 

The  State  of  IMississippi  has  a  law  requiring  railroads  carry- 
ing passengers  to  give  "separate  accommodations  to  white  and 
colored  races, ' '  by  furnishing  either  separate  coaches  or  separate 
compartments  in  the  same  coach.  The  law  was  construed  by 
the  state  courts  as  applying  only  to  commerce  within  the  state. 
The  Supreme  Court  of  the  United  States  held  the  law  valid." 
The  decision  is  in  harmony  with  the  case  of  Hall  v.  DeCuir, 
supra.  In  the  Louisiana  case  the  regulation  affected  interstate 
commerce  and  was  invalid ;  in  the  Mississippi  case  the  regulation 
did  not  affect  interstate  commerce  and  Avas  valid.  In  the  IMissis- 
sippi case  the  court  said : 

"The  reason  for  this  is  that  both  the  charge  and  the  actual 
transportation  in  such  cases  are  exclusively  confined  to  the  limits 
of  the  territory  of  the  state,  and  is  not  commerce  among  the 
states,  or  interstate  commerce,  but  is  exclusively  commerce  within 
the  state.  So  far,  therefore,  as  this  class  of  transportation,  as  an 
element  of  commerce,  is  affected  by  the  statute  under  considera- 
tion, it  is  not  subject  to  the  constitutional  provision  concerning 
commerce  among  the  states.  It  has  often  been  held  in  this 
court,  and  there  can  be  no  doubt  about  it,  that  there  is  a  com- 
merce wholly  within  the  state,  which  is  not  subject  to  the  con- 
stitutional provision,  and  the  distinction  between  commerce 
among  the  states  and  the  other  class  of  commerce  between  citi- 
zens of  a  single  state,  and  conducted  within  its  limits  exclusively, 
is  one  which  has  been  fully  recognized  in  this  court,  although  it 
may  not  be  always  easy,  where  the  lines  of  these  classes  approach 
each  other,  to  distinguish  between  the  one  and  the  other." 

Louisiana  subsequently  passed  a  separate  coach  law,  which 
the  Supreme  Court  sustained,  as  it  only  affected  commerce  in 
that  state." 

A  similar  law  in  Kentuclry-  was  also  sustained  by  the  Supreme 
Court." 

"  Louisville,  N.  O.  &  Tex.  Ey.  537,  41  L.  Ed.  256,  16  Sup.  Ct.  1138. 
Co.   V.   Mississippi,    133   U.   S.   587,  "Chesapeake  &   Ohio   Ey.   Co.  v. 

33  L.   Ed.   784,  10   Sup.   Ct.   348,   2  Kentucky,  179  IT.  S.  388,  45  L.  Ed. 

I.  C.  E.  801.     The  case  in  the  Su-  244,  21  Sup.  Ct.  101.     See  also  Ed- 

preme     Court     of     Iklississippi     was  wards  v.  N.  C.  &  St.  L.  Ey.  Co.,  12 

styled  Louisville,  N.  0.  &  T.  Ey.  Co.  I.  C.  C.  E.  247 ;  Gaines  v.  Seaboard 

V.  Mississippi,  66  Miss.  662,  5  L.  E.  A.  L.  Ey.,  16  I.  C.  C.  E.  471 ;  Cozart 

A.   132,   6   So.   203,  2  L   C.   E.   615,  v.  Southern  Ey.  Co.,  16  L  C.  C.  E. 

14  Am.  St.  Eep.  509.  226. 

"Plessy  V.   Ferguson,    163   U.    S. 


§  308.]  Interstate  Commerce.  343 

§  308.  Long  and  short  haul  clause  in  state  law. — The  law  of 
the  State  of  Kentucky  provided  that  it  shall  be  unlawful  for 
any  person  or  corporation  owning  or  operating  a  railroad  in  the 
state  to  charge  or  receive  any  greater  compensation  in  the  aggre- 
gate for  the  transportation  of  passengers  or  of  property  of  like 
kind,  under  substantially  similar  circumstances  and  conditions, 
for  a  shorter  than  for  a  longer  distance,  over  the  same  line,  in 
the  same  direction,  the  shorter  being  included  in  the  longer  dis- 
tance. 

The  Kentucky  court "  having  affirmed  a  judgment  against  the 
Louisville  &  Nashville  Eailroad  Company  for  a  violation  of  that 
law,  an  appeal  was  taken  to  the  Supreme  Court  of  the  United 
States,  where  the  Kentucky  court  was  affirmed."  In  this  case 
both  the  long  and  the  short  haul  w^ere  within  the  State  of  Ken- 
tucky. In  holding  that  the  Kentucky  law  did  not  illegally  af- 
fect interstate  commerce,  the  court  said : 

"It  is  plain  that  the  provision  in  question  does  not  in  terms 
embrace  the  case  of  interstate  traffic.  It  is  restricted  in  its  reg- 
ulation to  those  who  own  or  operate  a  railroad  within  the  state, 
and  the  long  and  short  distances  mentioned  are  evidently  dis- 
tances upon  the  railroad  line  within  the  state.  The  particular 
case  before  us  is  one  involving  only  the  transportation  of  coal 
from  one  point  in  the  State  of  Kentucky  to  another  by  a  cor- 
poration of  that  state. 

''It  may  be  that  the  enforcement  of  the  state  regulation  for- 
bidding discrimination  in  rates  in  the  case  of  articles  of  a  like 
kind  carried  for  different  distances  over  the  same  line  may  some- 
what affect  commerce  generally;  but  we  have  frequently  held 
that  such  a  result  is  too  remote  and  indirect  to  be  regarded  as 
an  interference  with  interstate  commerce;  that  the  interference 
with  the  commercial  power  of  the  general  government,  to  be  un- 
lawful, must  be  direct,  and  not  the  merely  incidental  effect  of 
enforcing  the  police  powers  of  a  state." 

In  another  case  where  the  state  court  held  that  the  law  ap- 
plied where  the  long  haul  was  interstate  commerce,  the  Supreme 
Court  reversed  the  state  court  and  held  that  the  Kentucky  law 
so  construed  was  invalid.     The  court,  Mr.  Justice  Peckhara  de- 


" Louisville  &  N.  R.  Co.  v.  Ken-  "Louisville  &  N.  E.  Co.  v.  Ken- 

tucky, 21  Ky.  Law  Eep.  232,  51  S.       tucky,  183  U.  S.  503,  46  L.  Ed.  298, 
W.  1G4,  1012,  106  Ky.  633.  22  Sup.  Ct.  95. 


344:  State  Ijavvs  Affecting  [§  309. 

livering  the  opinion,  and  ^Ir.  Justice  Brewer  and  Mr.  Justice 
Gray  dissenting,  saying :  " 

"Congress  does  not  directly  or  indirectly  interfere  with  local 
rates  by  adopting  their  sum  as  the  interstate  rate. 

"In  the  case  at  bar  the  state  claims  only  to  regulate  its  local 
rates  by  the  standard  of  the  interstate  rate,  and  says  that  the 
former  shall  be  no  higher  than  the  latter,  but  the  direct  eifect. 
of  that  provision  is,  as  we  have  seen,  to  regulate  the  interstate 
rate,  for  to  do  any  interstate  business  at  the  local  rate  is  im- 
possible, and  if  so,  it  must  give  up  its  interstate  business  or  else 
reduce  the  rate  in  proportion.  That  very  result  is  a  hindrance 
to,  an  interference  with,  and  a  regulation  of,  commerce  between 
the  states,  carried  on,  though  it  may  be,  by  only  a  single  com- 
pany. 

"We  are  of  the  opinion  that  as  construed  by  the  state  court, 
and  so  far  as  it  is  made  applicable  to  or  affects  interstate  com- 
merce, the  218th  section  of  the  Constitution  of  Kentucky  is  in- 
valid." 

§  309.  State  laws  forbidding  the  consolidation  of  competing 
common  carriers. — A  constitutional  provision  of  the  State  of 
Kentucky  prohibiting  the  consolidation  of  stocks,  franchises  or 
property,  as  well  as  the  purchase  and  lease,  of  parallel  and  com- 
peting lines  of  railroad  does  not  so  interfere  with  interstate 
commerce  as  to  be  invalid.  The  "instruments  of  commerce" 
may  be  regulated  by  the  states.  In  sustaining  the  foregoing  law 
of  Kentucky,  Mr.  Justice  BrowTi,  announcing  the  opinion  of  the 
Supreme  Court,  said :  " 

"The  power  to  construct  them  (railroads)  involves  necessarily 
the  power  to  impose  such  regulations  upon  their  operation  as  a 
sound  regard  for  the  interests  of  the  public  may  seem  to  render 
desirable.  In  the  division  of  autliority  with  respect  to  interstate 
raihvays  Congress  reserved  to  itself  the  superior  right  to  control 
their  commerce  and  forbid  interference  therewith;  while  to  the 
states  remains  the  power  to  create  and  to  regulate  the  instru- 
ments of  such  commerce,  so  far  as  necessary  to  the  conservation 
of  the  public  interests. 

"Louisville  &  N.  E.  Co.  v.  Eu-  16  Sup.  Ct.  714.  Explained,  North- 
bank,  184  U.  S.  27,  46  L.  Ed.  416,  ern  Securities  Co.  v.  United  States, 
22  Sup.  Ct.  277.  193  U.   S.  197,  348,  48  L.  Ed.  679, 

"Louisville  &  N.  E.   Co.  v.  Ken-  705,  24  Sup.  Ct.  436. 
tucky,  161  U.  S.  677,  40  L.  Ed.  849, 


§  310.]  Interstate  Commerce.  345 

''If  it  be  assumed  that  the  states  have  no  right  to  forbid  the 
consolidation  of  competing  lines,  because  the  whole  subject  is 
within  the  control  of  Congress,  it  would  necessarily  follow  that 
Congress  would  have  the  power  to  authorize  such  consolidation 
in  defiance  of  state  legislation, — a  proposition  which  needs  only 
to  be  stated  to  demonstrate  its  unsoundness." 

§  310.  Quarantine  laws  of  states. — States  may  protect  them- 
selves and  their  inhabitants  from  contagious  or  infectious  dis- 
eases. There  are  many  cases  to  this  effect,  most  of  which  will 
be  found  cited  in  Reid  v.  Colorado,'**  where  the  principle  is  an- 
nounced by  Mr.  Justice  Harlan : 

"Now,  it  is  said  that  the  defendant  has  a  right  under  the 
Constitution  of  the  United  States  to  ship  live  stock  from  one 
state  to  another  state.  This  will  be  conceded  on  all  hands.  But 
the  defendant  is  not  given  by  that  instrument  the  i^ight  to  in- 
troduce into  a  state,  against  its  will,  live  stock  affected  by  a  con- 
tagious, infectious,  or  communicable  disease,  and  whose  pres- 
ence in  the  state  will  or  may  be  injurious  to  its  domestic  ani- 
mals. The  state — Congress  not  having  assumed  charge  of  the 
matter  as  involved  in  interstate  commerce — may  protect  its  peo- 
ple and  their  property  against  such  dangers,  taking  care  always 
that  the  means  employed  to  that  end  do  not  go  beyond  the 
necessities  of  the  case  or  luireasonably  burden  the  exercise  of 
privileges  secured  by  the  Constitution  of  the  United  States.     * 

As,  therefore,  the  statute  does  not  forbid  the  introduction  into 
the  state  of  all  live  stock  coming  from  the  defined  territory, — 
that  diseased  as  well  as  that  not  diseased, — but  only  prescribes 
certain  methods  to  protect  the  domestic  animals  of  Colorado 
from  contact  with  live  stock  coming  from  that  territory  between 
certain  dates,  and  as  those  methods  have  been  devised  by  the 
state  under  the  power  to  protect  the  property  of  its  people  from 
injury,  and  do  not  appear  upon  their  face  to  be  unreasonable, 
we  must,  in  the  absence  of  evidence  showing  the  contrary,  as- 
sume that  they  are  appropriate  to  the  object  which  the  state  is 
entitled  to  accomplish." 

§  311.  Laws  to  promote  the  security  and  comfort  of  passen- 
gers.—  States  may  protect  the  personal  security  of  those  who  are 

"  Reifl  V.  Colorado,  187  U.  S.  1.37,       iiiorce    Clause    Federal    Constitution, 
1.11,   152,   47   L.   Ed.   108,   115,   116,       §  95. 
23  Sup.  Ct.  92.    See  also  Cooke  Com- 


346  State  Laws  Affecting  [§  312. 

passengers  ou  cars  used  wilhin  their  limits.  Under  this  prin- 
ciple, a  law  of  New  York  prescribing  how  passenger  cars  should 
be  heated,  was,  in  the  absence  of  national  regulation  on  the 
subject,  valid.  This  Avas  true  though  the  regulation  incidentally 
affected  interstate  commerce.*" 

§  312.  State  regulation  of  carriers  and  their  employees. — A 
state  statute  requiring  engineers  to  be  examined  and  licensed  is 
not  void,  though  it  may  incidentally  and  remotely  affect  inter- 
state commerce:"" 

A  law  of  a  state  forbidding  those  affected  with  color  blindness 
from  acting  as  locomotive  engineers  is  a  valid  exercise  of  the 
state's  police  power.'*  In  sustaining  the  above  principle,  Mv. 
Justice  Field  said: 

"It  is  conceded  that  the  power  of  Congress  to  regulate  inter- 
state commerce  is  plenary;  that,  as  incident  to  it.  Congress  may 
legislate  as  to  the  qualifications,  duties  and  liabilities  of  em- 
ployes and  others  on  railway  trains  engaged  in  that  commerce; 
and  that  such  legislation  will  supersede  any  state  action  on  the 
subject.  But  until  such  legislation  is  had,  it  is  clearly  within 
the  competency  of  the  states  to  provide  against  accidents  on 
trains  whilst  within  their  limits.  Indeed,  it  is  a  principle  fully 
recognized  by  decisions  of  state  and  federal  courts,  that  wher- 
ever there  is  any  business  in  which,  either  from  the  products 
created  or  the  instrumentalities  used,  there  is  danger  to  life  or 
property,  it  is  not  only  within  the  power  of  the  states,  but  it  is 
among  their  plain  duties,  to  make  provision  against  accidents 
likely  to  follow  in  such  business,  so  that  the  dangers  attending 
it  may  be  guarded  against  so  far  as  is  practicable." 

Under  this  principle,  a  state  law  requiring  a  certain  number  of 
employes  to  a  train,  known  as  the  Full  Crew  Law,  is  valid.'''' 

If  a  state  can  not  regulate  the  employees  of  railroads  in  so 
far  as  they  are  engaged  in  intrastate  commerce,  they  can  not  be 
regulated.'* 

>«  New  York,  N.  H.  &  H.  R.  Co.  "  Nashville,  C.  &  St.  L.  R.  Co.  v. 

V.  New  York,  165  U.  S.  628,  41  L.  Alabama,  128  U.  S.  96,  32  L.  Ed. 

Ed.  853,  17  Sup.  Ct.  418.    In  a  note  352,  9  Sup.  Ct.  28. 

to  the  decision  will  be  found  cited  a  '^  Chicago,  R.  I.  &  P.  Ry.  Co.  v. 

large    number    of    cases    sustaining  Arkansas,   86  Ark.   412,   111   S.   W. 

the  general  principle  involved  in  the  456. 

statement  of  law  in  this  section.  -^  Howard    v.    Illinois    C.    R.    Co., 

=»  Smith    V.    Alabama,    124    U.    S.  207   U.   S.   463,   52   L.   Ed.   297,   28 

465,  31  L.  Ed.  508,  8  Sup.  Ct.  564,  Sup.   Ct.   141.     See   a   discussion   of 

1  I.  C.  R.  804.  Smith  v.  Alabama  and  similar  cases 


§313.]  Interstate  Commerce.  347 

A  regulation  requiring  guard  posts  on  railroad  trestles  and 
bridges  a  valid  exercise  of  the  state's  police  power.'* 

§  313.  Laws  limiting  or  enlarging  the  common  law  liability 
of  carriers. — The  question  of  the  right  of  a  railroad  company  to 
limit  its  common  law  liability  as  a  carrier  by  contract  is  one  of 
general  law  upon  which  the  Supreme  Court  of  the  United  States 
will  exercise  its  judgment.  It  is  none  the  less  the  law  of  the 
states  and  any  state  may  pass  laws  on  the  subject.  Therefore, 
as  to  transportation  within  a  state,  the  legislature  of  that  state 
may  provide  that  a  contract  of  a  common  carrier  by  which  it 
exempts  itself  from  its  common  law  liability  is  void."" 

The  statute  of  Virginia  provides: 

"When  a  common  carrier  accepts  for  transportation  anything 
directed  to  a  point  of  destination  beyond  his  own  line  he  shall 
be  deemed  thereby  to  assume  an  obligation  for  its  safe  carriage 
to  such  point  of  destination,  unless,  at  the  time  of  such  accept- 
ance, such  carrier  be  released  or  exempted  from  such  liability 
by  contract  in  writing  signed  by  the  o^^^ler  or  his  agent." 

Suit  was  brought  against  the  carrier  issuing  the  bill  of  lading 
to  recover  for  the  loss  of  goods  shipped  from  Virginia  to  Louis- 
iana. The  carrier  depended  on  a  clause  in  its  bill  of  lading,  not 
signed  by  the  shipper,  exempting  it  from  liability  for  loss  be- 
yond its  o's^Ti  line.  The  shipper  relied  on  the  statute,  which  was 
sustained  by  the  Supreme  Court."'^  Section  twenty  of  the  act  to 
regulate  commerce,  it  will  be  remembered,  contains  a  clause  sim- 
ilar to  the  Virginia  law,  supra. 

A  law  of  Missouri  similar  to  the  Virginia  law  was  also  sus- 
tained by  the  Supreme  Court  of  the  United  States." 

The  refusal  of  a  state  court  to  hold  valid  a  provision  of  a  bill 
of  lading  limiting  the  carrier's  liability  to  a  stated  sum  does 
not  violate  any  of  the  provisions  of  the  interstate  commerce  act.^* 


in  dissenting  opinion  of  Mr.  Justice  -"Eicbmond   &  A.   E.   Co.   v.   Pat- 
Moody,  torson,  169  U.  S.  311,  42  L.  Ed.  759, 

^'  New  York  Cent.  &  II.  R.  E.  Co.  18  Sup.  Ct.  335. 

V.  New  York,  165  U.  S.  628,  41  L.  -^Mo.,    Kan.    &    Tex.    Ey.    Co.    v. 

Ed.  8.'3,  17  Sup.  Ct.  418,  affirming  IMcCann,  174  U.  S.  580,  43  L.  Ed. 

]42  N.  Y.  646,  37  N.  E.  .568.  ]093,  19  Sup.  Ct.  75.5. 

"Chicago,  M.  &  St.  P.  Ey.  Co.  v.  ^^  Penn.  E.  Co.  v,  Hughes,  191   U. 

Solan,    169    U.    S.    133,    42    L.    Ed.  S.  477,  48  L.  Ed.  268,  24  Sup.  Ct. 

688,  18  Sup.  Ct.  289.     See  notes  L.  132. 
Ed. 


348  State  Laws  Affecting  [§  314. 

A  provision  of  the  law  of  Georgia,  applicable  both  to  inter  and 
intrastate  connneree,  that  a  carrier,  in  order  to  exempt  itself 
from  liability  beyond  its  own  line,  should  inform  the  shipper,  in 
writing,  when,  where  and  how  and  by  which  carrier  the  freight 
was  lost  or  damaged  was  held  invalid  by  the  Supreme  Court.'" 
The  Georgia  case  is  distinguished  from  the  Virginia  case,  note  °° 
supra,  although  the  Virginia  case  required  the  carrier  to  show 
that  the  loss  did  not  occur  on  its  own  line,  when  the  shipper  had 
signed  a  contract  which  limited  the  liability  of  the  carrier  to  its 
o^vn  line.  It  would,  therefore,  seem  that  the  Georgia  law  is 
just  a  little  beyond  the  boundary  line  that  marks  the  difference 
between  a  reasonable  and  an  unreasonable  regulation.  In  con- 
sidering the  Virginia  case  the  court  said : 

''These  vieAvs  dispose  of  the  substantial  questions  which  the 
case  presents,  for  the  contention  which  arises  on  the  concluding 
sentences  of  the  statute,  imposing  upon  a  carrier  a  duty  where 
the  loss  has  not  happened  on  the  carrier's  own  line  to  inform  the 
shipper  of  this  fact,  is  but  a  regulation  manifestly  within  the 
power  of  the  state  to  adopt." 

Subsequent  to  the  decision  of  the  Supreme  Court  of  the 
United  States,  the  Supreme  Court  of  Georgia  held  that  the 
Georgia  statute  applied  only  to  intrastate  commerce  and  so  lim- 
ited was  valid.'" 

The  Interstate  Commerce  Commission,  by  order  787,  of  June 
27,  1908,  approved  a  uniform  bill  of  lading.  This  contract 
would,  of  course,  control  in  interstate  transactions. 

§  314.  Penalties  for  failure  to  pay  claims. — A  law  of  South 
Carolina  providing  that  should  a  carrier  fail,  within  a  time  there- 
in stated,  to  pay  a  claim  for  loss  or  damage,  such  carrier  was 
subject  to  a  penalty  of  Mty  dollars.  The  law  applied  both  to 
intrastate  and  interstate  commerce,  the  time  to  settle  being  forty 
days  in  the  former  and  ninety  days  in  the  latter.  In  a  case  in 
the  Supreme  Court  of  the  United  States  involving  an  intrastate 
sliipment  where  judgment  had  been  entered  for  fifty  dollars 
penalty  and  one  dollar  and  seventy-five  cents  damage,  the  law 
was  sustained.'''  Mr.  Justice  Brewer,  delivering  the  opinion, 
said : 

=«  Central  of   Ga.   R.   Co.   v.   Mur-  ^o  g^y^ij^^   jjy.    Co.    v.    Eagsdale, 
phey,  196  U.  S.  194,  49  L.  Ed.  444,  119  Ga.  773,  47  S.  E.  179. 
25    Sup.    Ct.    218.      Eeversing    same  ^^  Seaboard  Air  Line  Ey.   v.   See- 
case,  116  Ga.  863,  43  S.  E.  265,  60  gers,  207  U.   S.   73,  52  L.  Ed.   108, 
L.  E.  A.  817.  28  Sup.   Ct.  28.     Same  case  below, 


§  314.]  Interstate  Commerce.  349 

"Further,  the  matter  to  be  adjusted  is  one  peculiarly  within 
the  knowledge  of  the  carrier.  It  receives  the  goods  and  has  them 
in  its  custody  until  the  carriage  is  completed.  It  loiows  what 
injury  was  'done  during  the  shipment,  and  how  it  was  done.  The 
consignee  may  not  know  what  was  in  fact  delivered  at  the  time 
of  the  shipment,  and  the  shipper  may  not  know  what  was  deliv- 
ered to  the  consignee  at  the  close  of  the  transportation.  The 
carrier  can  determine  the  amount  of  the  loss  more  accurately 
and  promptly  and  with  less  delay  and  expense  than  any  one  else, 
and  for  the  adjustment  of  loss  or  damage  to  shipments  within 
the  state  forty  days  can  not  be  said  to  be  an  unreasonably  short 
length  of  time." 

Whether  the  statute  Avould  have  been  valid  had  the  shipment 
been  interstate  was  not  determined. 

73  S.  C.  71,  52  S.  W.  797.     See  also       S.  C.  479,  52  S.  E.  223. 
Best  V.   Seaboard  A.  L.  Ey.   Co.  72 


CHAPTER  VIII. 

ACTS  OF  CONGRESS  INDIRECTLY  AFFECTING  INTER- 
STATE TRANSPORTATION. 

§  400.  Scope  of  chapter. 

401.  The  twentyeight  hour  law. 

402.  Sherman  antitrust  law. 

403.  Safety  appliance  acts. 

404.  Employers'  liability  act. 

405.  Enforcement  by  state  courts  of  rights  under  the  safety  appliance 

and  employers'  liability  acts. 

406.  Arbitration  act. 

407.  Corporation   tax  law. 

§  400.  Scope  of  chapter. — The  general  purpose  of  this  work 
is  to  state  the  law  governing  the  transportation  of  interstate 
freight  and  passengers.  It  is  not  a  treatise  on  the  general  law 
of  carriers,  nor  is  it  a  disenssion  of  the  commerce  clause  of  the 
Constitution  of  the  United  States.  These  questions  are  inci- 
dentally involved,  but  the  main  purpose  of  the  work  is  to  treat 
of  the  rights  of  shippers  and  carriers  which  arise  out  of  or  are 
affected  by  the  acts  of  Congress.  Of  these  acts,  the  act  to  reg- 
ulate commerce,  the  amendments  thereof  and  supplements  there- 
to, including  the  Elldns  law,  are  the  most  important.  These 
acts  are  herein  copied  and  annotated  (see  chapter  nine). 

The  28-hour  law  directly  affects  the  questions  discussed  in 
this  book.  A  Imowledge  of  the  other  statutes  hereinafter  refer- 
red to  is  sometimes  necessary  to  a  clear  understanding  of  the 
questions  affecting  the  rights  and  duties  of  carriers  engaged  in 
interstate  transportation. 

For  this  reason,  reference  to  these  statutes  will  be  made  in  this 
chapter. 

§  401.  The  twenty-eight  hour  law. — The  statute  known  as  the 
twenty-eight  hour  law,  or  sometimes  designated  as  the  f\ct  to 
prevent  cruelty  to  animals,  became  law  June  29,  1906,  though 
prior  thereto  the  act  of  IMarch  3,  1873,  codified  in  the  Revised 
Statutes  of  the  United  States.  §§  4386  to  4390,  contained  sim- 

350 


§  402.]         Affecting  Interstate   Transportation.  351 

ilar  provisions.  This  act  (see  chapter  10  post)  requires  that 
animals  being  shipped  as  interstate  freight  shall  not  be  con- 
fined longer  than  twenty-eight  hours  without  unloading  for  rest, 
water,  and  feeding.  There  are  certain  exceptions  provided  for. 
The  expense  of  feeding  is  placed  on  the  owner,  and  when  the 
carrier  furnishes  feed,  he  has  a  lien  for  the  value  thereof.  Pen- 
alties, recoverable  by  the  United  States  by  civil  action,  are  pro- 
vided for.  The  act  is  a  valid  exercise  of  the  power  granted  Con- 
gress over  foreign  and  interstate  commerce. 

Before  penalties  can  be  recovered,  the  carrier  must  Imowingly 
and  wilfully  fail  to  comply  with  the  law.  This  does  not  mean, 
however,  that  there  must  be  an  evil  intent,  it  is  sufficient  if  the 
act  was  intentionally  and  purposely  done.  An  accident  caused 
by  the  negligence  of  the  carrier  is  not  a  sufficient  defense.  The 
suit  is  civil  in  its  nature  and  proof  by  a  preponderance  of  the 
evidence  is  sufficient.  One  penalty  can  be  recovered  for  each 
shipment,  whether  such  shipment  consists  of  one  or  a  train  load 
of  animals,  ''the  shipment,  and  not  the  train  load,  being  the, 
integer  contemplated  as  the  objective  thing  to  which  the  offense 
relates."  ^ 

§  402.  Sherman  Anti-Trust  Law. — The  Sherman  Anti-Trust 
Law  is  copied  and  annotated  in  chapter  eleven  hereof.  The  act 
was  at  first  construed  as  not  applying  to  carriers.  This  question 
was  definitely  settled  in  Trans-lMissouri  Freight  Asso.  Case.'  In 
this  case  the  court  said: 

"The  language  of  the  act  includes  every  contract,  combina- 
tion in  the  form  of  trust  or  otherwise,  or  conspiracy,  in  restraint 
of  trade  or  commerce  among  the  several  states  or  with  foreign 
nations.  So  far  as  the  very  terms  of  the  statute  go,  they  apply 
to  any  contract  of  the  nature  described.     A  contract  therefore 

^United  States  v.  Baltimore  &  O.  Co.   v.   United   States,   169   Fed.   69, 

S.  W.  R.  Co.,  159  Fed.  33,  86  C.  C.  C.   C.  A.         ,  United   States  v. 

A.  223;  United  States  v.  Oregon  S.  New  York  C.   &  H.  E.  R.   Co.,  168 

L.    R.    Co.,    160    Fed.    526;    United  Fed.  699,         C.  C.  A.          ;   United 

States   V.    Sioux    City    Stock   Yards  States   v.    Union    Pac.    R.    Co.,    169 

Co.,    162    Fed.    556;    United    States  Fed.   65,          C.   C.  A.          ;   Wiscon- 

V.  Oregon  R.  &  Nav.  Co.,  163  Fed.  sin  Central  Ry.  Co.  v.  United  States, 

642;   Mont.   Cent.   R.   Co.  v.  United  109  Fed.  76,         C.  C.  A. 

States,   164  Fed.   400,          C.   C.  A.  =  United  States  v.  Trans-Missouri 

New   York    C.    &    IT.    R.    R.    Co.    v.  Freight  Asso.,  166  U.  S.  290,  41  L. 

United  States,  165  Fed.  833,         C.  Ivl.   1007,   17   Sup.  Ct.  540,   1  Fed. 

C.  A.         ,  St.  Louis  &  S.  F.  Ry.  Co.  Anti-Trust  Dec.  648. 


352  Acts  of  Congress  Indirectly  [§  403. 

that  is  ill  resti'aint  of  trade  or  commerce  is  by  the  strict  lan- 
guage of  tlie  act  prohibited  even  though  such  contract  is  entered 
into  between  competing  carriers  by  railroad,  and  only  for  the 
purposes  of  thereby  affecting  traffic  rates  for  the  transportation 
of  persons  and  property.  **********  Tj^g 
point  urged  on  the  defendants'  part  is  that  the  statute  was  not 
really  intended  to  reach  that  kind  of  an  agreement  relating  only 
to  traffic  rates  entered  into  by  competing  common  carriers  by 
railroad;  that  it  was  intended  to  reach  only  those  who  were  en- 
gaged in  the  manufacture  or  sale  of  articles  of  commerce,  and 
who  by  means  of  trusts,  combinations  and  conspiracies  were  en- 
gaged in  affecting  the  supply  or  the  price  or  the  place  of  manu- 
facture of  such  articles.  The  terms  of  the  act  do  not  bear  out 
such  construction.  Railroad  companies  are  instruments  of  com- 
merce, and  their  business  is  commerce  itself." 

This  ruling  was  folloAved  in  the  Joint  Traffic  Case.''  The  effect 
of  a  violation  of  this  act  has  been  discussed  hereinbefore  in  sec- 
tion 55,  and  is  forcibly  pointed  out  by  Judge  Speer  in  the  Tift 
Case.* 

§  403.  Safety  appliance  acts. — Under  the  title  of  Safety  Ap- 
pliance Acts  may  be  included  the  Automatic  Coupler  Act  (Ap- 
pendix A)  of  March  2,  1893,  as  amended  April  1,  1896,  a  sup- 
plement to  the  Automatic  Coupler  Act  passed  March  2,  1903 
(Appendix  B)  ;  the  act  requiring  reports  of  accidents  (Appen- 
dix C)  ;  the  hours  of  service  act  (Appendix  D)  ;  the  ash  pan  act 
(Appendix  E)  ;  the  explosive  acts  (Appendix  F). 

These  acts  may  not  all  be  logically  classed  as  safety  appliance 
acts,  yet  they  all  relate  to  the  safety  of  interstate  transporta- 
tion and  may  properly  be  considered  together. 

These  acts  rest  upon  the  right  of  Congress  to  regulate  com- 
merce with  foreign  nations  and  among  the  several  states.  The 
primary  object  of  all  these  acts  was  to  promote  the  public  wel- 
fare by  securing  the  safety  of  employees  and  travelers ;  the  acts 
are,  therefore,  remedial  and  should  be  so  construed  as  not  to  de- 
feat the  obvious  intention  of  Congress.^ 


^United    States    v.    Joint    Traffic  Fed.    753,    2    Fed.    Anti-Trust    Dec. 

Asso.,  171  U.  S.  505,  43  L.  Ed.  259,  733. 

19   Sup.   Ct.   25,   1   Fed.  Anti-Trust  ''Safety  Appliance  Act,  March  2, 

Dec.  869.  1893,  chap.  196,  27  Stat.  L.  531,  U. 

*  Tift    V.    Southern    Ey.    Co.,    138  S.  Comp.  Stat.  1901,  p.  3174,  6  Fed. 


§  404.]         Affecting  Interstate   Transportation.  353 

§  404.  Employers'  Liability  Act. — The  first  employers'  lia- 
bility act,  that  of  Jmie  11,  1906,  chap.  3073,  34  Stat  L.  232, 
was  declared  by  the  Supreme  Court  of  the  United  States  to  be 
unconstitutional,  because,  as  construed,  it  applied  not  only  to 
employees  of  carriers  engaged  in  interstate,  but  also  to  carriers 
while  engaged  in  intrastate  commerce.  "Whether  the  act  vio- 
lated the  14th  Amendment  was  not  decided,  but  reference  was 
made  to  decisions  of  the  court  holding  valid  state  laws  making 
a  special  regulation  as  to  a  carrier's  liability  to  its  employees. 
From  these  citations  and  from  a  consideration  of  the  opinions 
both  concurring  and  dissenting,  it  is  believed  that  the  present  act 
is  valid." 

The  present  act  (Appendix  G)  was  approved  April  22,  1908.^ 

The  act  is  remedial,  is  not  penal  and  should  be  liberally  con- 
strued to  effect  its  beneficent  purposes. 

In  the  labor  laws  of  the  United  States,  contained  in  the  twen- 
ty-second annual  report  of  the  Connnission  of  Labor,  will  be 
found  all  the  state  laws  similar  to  the  Federal  Employer's  Lia- 
bility Act  up  the  time  that  report  was  prepared.  Since  then 
Texas  and  Georgia  have  passed  laws  applying  to  intrastate  com- 
merce substantially  the  same  as  that  contained  in  the  federal 
act.  That  the  states  may  do  this  is  clearly  shown  in  Howard 
V.  Illinois  Central  R.  Co.,  note,"  supra.  That  the  Texas  and  the 
Georgia  laws  are  valid  can,  therefore,  be  safely  assumed.  It  is 
always  a  question  of  fact,  in  each  ease,  as  to  whether  or  not  the 
commerce  at  the  time  an  injury  may  occur  is  within  the  one  or 

Stat.    Ann.    752,    amended   April    1,  Southern  Pac.   Co.,  196  U.  S.  1,  49 

1S96,    29    Stat.    L.    85,    and    act    ot  L.  Ed.  .363,  25  Sup.  Ct.  158 ;  ScWem- 

March  2,  1903,  chap.  976,  32   Stat.  mer  v.  Buffalo,  E.  &  P.  E.  Co.,  205 

L.    943,    U.    S.    Comp.    Stat.    Supp.  U.  S.  1,  51  L.  Ed.  681,  27  Sup.  Ct. 

603,  10  Fed.  Stat.  Ann.  375.  407. 

Act    Eequiring    Eeports    of    Acci-  "Employers'        Liability        Cases, 

dents,  Act  March  3,  1901,  chap.  866,  Howard  v.  111.  Cent.  E.  Co.,  207  U. 

31  Stat.  L.  1446,  U.  S.  Comp.  Stat.  S.  463,  52  L.  Ed.  297,  28  Sup.  Ct. 

p.  3176,  6  Fed.  Stat.  Ann.  757.  141.      Thornton    Employers'   Liabil- 

Act  Limiting  Hours  of  Service  of  ity     and     Safety     Appliance     Acts. 

Employees,  Act  March  4,  1907,  chap.  Missouri   P.   E.   Co.  v.   Mackey,   127 

29.39,  34  Stat.  L.  1415.  V.  S.  205,  32  L.  Ed.  107,  8  Sup.  Ct. 

Ash  Pan  Act,  May  30,  1908,  chap.'  1161;    Minneapolis  &  St.  L.   E.   Co. 

225,  35  Stat.  L.  476.  v.  Herrick,  127  U.  S.  210,  32  L.  Ed. 

Explosives    Act,    May    30,    1908,  109,   8   Sup.   Ct.   1176;   Chicago,   K. 

chap.  234,  35  Stat.  L.  554.  &  W.  E.   Co.  v.  Pontius,  157   U.   S. 

United  States  v.  Atlantic  C.  L.  E.  209,  39  L.  Ed.  675,  15  Sup.  Ct.  585, 
Co.,    153    Fed.    918  j    Jobnsou    v.         '  Chapter  149,  35  Stat.  L.  65, 


354  Acts  OP  CoxGRESS  Indirectly  [§405. 

the  other  law.  Questions  of  jurisdiction  will  also  be  determined 
upon  the  facts  in  each  case.  It  tends,  therefore,  to  harmony 
that  the  states  are  adopting  the  federal  statute.  The  same  car- 
rier should  not,  in  performing  the  same  kind  of  service,  be  sub- 
jected to  conflicting  laws,  merely  because  in  one  case  the  injury 
is  caused  by  a  car  or  train  engaged  in  interstate  commerce  and 
in  the  other  such  car  or  train  is  engaged  in  purely  state  com- 
merce. In  most  cases,  however,  it  wdll  be  found  that  the  car- 
rier is  engaged  in  transporting  interstate  commerce.  The  act  of 
Congress  applies  only  to  common  carriers  while  engaged  in  in- 
terstate commerce  and  to  employees  while  employed  by  such  car- 
riers in  such  commerce.  For  a  discussion  of  what  is  interstate 
commerce  see  ante  §§  5  and  7,  and  post  §§  500,  501  and  502. 

§  405.  Enforcement  by  state  courts  of  rights  under  the  safety 
appliance  and  employers'  liability  acts. — In  section  200  infra  it 
was  seen  that  causes  arising  under  the  Constitution  and  laws  of 
the  United  States  were  within  the  judicial  powers  of  the  federal 
courts.  It  is  also  true  that  such  power  may  be  exclusive  in  the 
federal  courts,  or  may  be  concurrently  exercised  by  the  statt 
courts.  In  all  cases  Congress  may  provide  that  the  enforcement 
of  rights  under  a  federal  statute  shall  be  exclusively  in  the  fed- 
eral courts.  But  whether  so  provided  b}^  Congress  or  not,  if  the 
enforcement  of  a  law  of  the  United  States  by  the  courts  of  the 
several  states  is  incompatible  with  the  general  purposes  of  such 
law,  the  federal  courts  have  exclusive  jurisdiction.  Revised 
Statutes  of  the  United  States,  §  629,  gives  the  circuit  courts 
original  jurisdiction,  regardless  of  the  amount  in  controversy,  of 
certain  cases  there  mentioned.  Cases  under  the  statutes  here 
under  discussion  are  not  mentioned  in  that  section,  and  it  is 
not  incompatible  with  the  act  for  it  to  be  enforced  by  state 
courts,  and  there  seems  no  doubt  that,  in  proper  cases,  the 
courts  of  the  several  states  may  enforce  individual  rights  aris- 
ing under  these  acts.  The  judiciary  act  of  ]\Iarch  3.  1887  (4  Fed. 
Stat.  Ann.  265,  266).  recognizes  a  concurrent  jurisdiction  of 
the  courts  of  the  United  States  "with  the  courts  of  the  several 
states"  *  *  "where  the  matter  in  dispute  exceeds,  exclusive 
of  interest  and  costs,  the  sum  or  value  of  two  thousand  dollars," 
and  where  such  cases  arise  "under  the  Constitution  or  laws  of 
the  United  States."' 

'Employers'  Liability  and  Safety      note  2. 
Appliance  Acts  by  Tbonitoji,  §  105, 


§  405.]         Affecting  Interstate   Transportation.  355 

"While  that  a  state  court  has  concurrent  jurisdiction  with  the 
federal  courts  is  admitted,  it  has  been  said : '  "  If  an  action  be 
brought  under  the  statute,  by  an  employe,  in  a  state  court,  there 
is  no  serious  doubt  about  its  removal  into  a  federal  court.  The 
liability  is  one  given  by  a  federal  statute,  and  the  defendant  has 
the  right  to  insist  that  that  liability  be  determined  by  the  courts 
of  the  nation  that  created  it.  Nor  is  the  question  of  citzenship 
of  the  defendant  involved." 

Perhaps  this  statement  is  accurate  if  a  suit  is  brought  under 
the  act  and  it  should  appear  from  the  plaintiff 's  statement  of  his 
case  that  a  construction  of  the  act  was  necessary  to  determine  the 
rights  set  up  in  the  petition;  but,  where  suit  is  brought  to  en- 
force a  right  given  by  the  statute,  a  construction  of  the  law  not 
being  involved  in  plaintiff's  statement  of  his  case,  the  mere  fact 
that  the  ''liabilitj^  is  one  given  by  a  federal  statute  is  not  suf- 
ficient to  authorize  a  removal  of  the  cause  from  a  state  to  a  fed- 
eral court."  " 

These  principles  are  supported  by  a  forceful  opinion  of  Judge 
Newman  in  Miller  v.  111.  Cent.  E.  Co.,  cited  note  '°  supra.  In 
that  case  plaintiff  brought  his  suit  in  a  state  court,  setting  up 
in  his  petition  a  full  copy  of  the  Employers'  Liability  Act,  and 
claiming  rights  thereunder.  Upon  petition,  defendant  removed 
the  cause  to  the  federal  court,  where,  upon  motion,  Judge  New- 
man remanded  the  cause  to  the  state  court.  After  discussing  the 
authorities,  Judge  Newman  concludes  by  saying : 

''Taking  the  plaintiff's  case  as  presented  by  his  declaration, 
it  does  not  appear  that  the  construction  of  the  act  known  as  the 
'Employers'  Liability  Act'  of  Congress  is  in  any  Avay  involved 
in  this  case.  It  seems  to  be  a  case  where  the  decision  will  depend 
entirely  upon  the  facts  of  the  case  as  applied  to  the  law.  The 
mere  application  of  the  act  of  Congress  to  the  case  gives  no  right 
of  removal.  The  decision  of  the  case  must  depend  upon  its  con- 
struction, and  this  in  no  way  appears  in  the  plaintiff's  pleadings 
in  this  case." 

In  a  case  brought  in  Connecticut  under  the  Employers'  Lia- 
bility Act  the  trial  court  sustained  a  demurrer,  which  ruling 


'TfL  §  106.  53  L.  Erl.         ,  29  Sup.  Ct.  42. 

"Miller  v.  Illinois  C.  E.  Co.,  168  "  Iloxie   v.    New   York,   N.    II.    & 

Fcfl.  982.     See  also  Louisville  &  N.  II.  R.  Co.,  73  Atl.  754,        Com. 
R.   Co.  V.  Mottley,   211  U.   S.   149, 


356  Acts  op  Congress  Indirectly  [§406. 

the  Supreme  Court  sustained,  concluding  a  lengthy  opinion  as 
follows : 

"To  sum  up  our  conclusions,  the  judgment  of  the  superior 
court  was  right  on  each  of  the  following  grounds:  (1)  Congress 
did  not  intend  by  the  act  of  April  22,  1908,  to  authorize  the  in- 
stitution of  an  action  under  it  in  the  courts  of  the  states.  (2)  It 
had  no  power  to  make  it  incumbent  on  the  state  courts  to  assume 
jurisdiction  of  such  an  action.  (3)  The  issues  before  the  su- 
perior court  involved  the  consideration  of  those  points,  which 
justified  of  themselves  the  dismissal  of  the  plaintiff's  action ;  but, 
further  (4)  the  act,  so  far  as  it  concerns  this  cause,  is  wholly 
void  by  reason  of  certain  of  its  provisions  which  can  not  be  sep- 
arated from  the  rest. ' ' 

The  opinion  of  Judge  Newman  appears  to  be  more  consistent 
with  reason  and  authority. 

§  406.  Arbitration  Act. — The  act  of  June  1,  1898,'"  known  as 
the  Arbitration  x\ct,  or  sometimes  as  the  Erdman  Act,  had  as  its 
purpose  the  settlement  of  controversies  between  carriers  and 
their  employees.  This  statute  is  persuasive  and  does  not  at- 
tempt to  be  compulsory.  Arbitrators  under  the  act  are  essen- 
tially common  law  arbitrators  and  rights  of  the  parties  thereto 
rest  upon  the  contract  of  arbitration,  which  contract  must  be 
construed  in  accordance  with  the  rules  governing  contracts.  In 
an  arbitration  had  in  accordance  with  the  terms  of  the  act, 
Judge  Van  Fleet  speaks  of  the  ''very  commendable  object  aimed 
at  by  the  act"  and  says :  "  "  The  evident  purpose  of  the  law  was 
to  afford  a  ready,  summary,  and  speedy  method  of  amicably  ad- 
justing labor  disputes  arising  between  the  class  of  employers  and 
employees  to  which  it  applies." 

§  407.  Corporation  tax  law. — In  the  Payne  tariff  law  there 
are  provisions  levying  on  all  corporations,  whether  organized 
under  the  laws  of  the  United  States,  a  state,  or  a  territory,  a 
special  excise  tax  with  respect  to  the  carrying  on  or  doing  busi- 
ness by  such  corporation,  joint  stock  company  or  association,  or 
insurance  company,  equivalent  to  one  per  centum  upon  the  en- 
tire net  income  over  and  above  five  thousand  dollars  received 
by  its  from  all  sources  during  such  year,  exclusive  of  amounts 

"  Arbitration      Act,     also     called  Stat.  1901,  p.  3205.     Appendix  H. 

Erdman  Act,  approved  June  1,  1898,  "  Re    Southern    Pacific    Co.,    155 

chap.  370,  30  Stat.  L.  424  et.  seq.,  Fed.  1001. 
4  Fed.  Stat.  Ann.  784,  U.  S.  Comp. 


§  407.]         Affecting  Interstate   Transportation.  357 

received  by  it  as  dividends  upon  stock  of  other  corporations,  joint 
stock  companies  or  associations,  or  insurance  companies,  subject 
to  the  tax  thereby  imposed. 

Foreign  corporations  are  also  liable  to  the  same  tax  upon  the 
amount  of  net  income  over  and  above  five  thousand  dollars  re- 
ceived by  them  from  business  transacted  and  capital  invested 
within  the  United  States  and  its  territories,  Alaska,  and  the  Dis- 
trict of  Columbia  during  such  year,  exclusive  of  amounts  so  re- 
ceived by  them  as  dividends  upon  stock  of  other  corporations, 
joint  stock  companies  or  associations,  or  insurance  companies, 
subject  to  the  tax  hereby  imposed. 

Labor,  agricultural,  horticultural  and  fraternal  beneficiary 
societies  are  exempted. 

Provision  is  made  for  the  ascertainment  of  the  amount  of 
taxes  that  may  be  due  under  the  act,  and  for  the  collection 
thereof.  By  the  provisions  of  this  tax  act,  the  federal  govern- 
ment will  be  able  to  acquire  information  as  to  the  conduct  of 
the  business  of  corporations,  and  the  provisions  are  supposed  to 
offer  an  opportimity  for  the  general  government  to  advance  to 
laws  regulating  and  licensing  corporations.'* 

This  tax  is  similar  to  that  provided  for  in  the  War  Revenue 
Act  of  June  13,  1898  (30  Stat.  L.  449,  464,  chap.  448,  U.  S. 
Comp.  St.  1901,  pp.  549,  550)  section  27  levjdng  an  excise  tax 
on  the  business  of  refining  petroleum  and  sugar  and  the  busi- 
ness of  pipe  line  companies.  The  Spreckles  Sugar  Refining 
Company  having  paid  the  war  revenue  tax  under  protest,  sued 
to  recover  the  amount  paid,  claiming  that  that  law  was  invalid. 
The  Supreme  Court  held  the  law  valid,  saying: " 

"In  view  of  these  and  other  decided  cases,  we  can  not  hold 
that  the  tax  imposed  on  the  plaintiff  expressly  with  reference  to 
its  'carrying  on  or  doing  the  business  of  .  . .  refining  sugar,'  and 
which  was  to  be  measured  by  its  gross  annual  receipts  in  excess 
of  a  named  sum,  is  other  than  is  described  in  the  act  of  Congress, 
— a  special  excise  tax,  and  not  a  direct  one,  to  be  apportioned 
among  the  states  according  to  their  respective  numbers.  This 
conclusion  is  inevitable  from  the  judgments  in  prior  cases,  in 
which  the  court  has  dealt  with  the  distinctions,  often  very  dif- 


"  §  38  of  the  Payne  Tariff  Act,  "  Spreckles  Sugar  Refining  Co,  v. 

approved  August  5,  1909,  Appendix      McT>ain,   192   IT.   S.   397,  48   L.   Ed. 
I.  49G,  24  Sup.  Ct.  376. 


358  Acts  of  Congress  Indirectly  [§407. 

ficult  to  be  expressed  in  words,  between  taxes  that  arc  direct  and 
those  which  are  to  be  regarded  simply  as  excises.  The  grounds 
upon  which  those  judgments  were  rested  need  not  be  restated  or 
re-examined.  It  would  subserve  no  useful  purpose  to  do  so.  It 
might  suffice  now  to  say  that  they  clearly  negative  the  idea  that 
the  tax  here  involved  is  a  direct  one,  to  be  apportioned  among 
the  states  according  to  numbers. 

"It  is  said  that  if  regard  be  had  to  the  decision  in  the  income 
tax  cases,  a  different  conclusion  from  that  just  stated  must  be 
reached.  On  the  contrary,  the  precise  question  here  was  not  in- 
tended to  be  decided  in  those  cases.  For,  in  the  opinion  on  the 
rehearing  of  the  income  tax  cases,  the  chief  justice  said:  'We 
have  considered  the  act  only  in  respect  of  the  tax  on  income  de- 
rived from  real  estate,  and  from  invested  personal  property,  and 
have  not  commented  on  so  much  of  it  as  bears  on  gains  or  profits 
from  business,  privileges,  or  employments,  in  view  of  the  in- 
stances in  which  taxation  on  business,  privileges,  or  employments 
has  assumed  the  guise  of  an  excise  tax  and  been  sustained  as 
such.'  Pollock  V.  Farmers'  Loan  &  Trust  Co.,  158  U.  S.  601,  39 
L.  Ed.  1108.  15  Sup.  Ct.  Eep.  912." 


CHAPTER  IX.      • 
ACTS  REGULATING  COMMERCE. 

TncludiBg  act  ajiproved  February  4,  1887,  chapter  104,  effective  April 
5,  1887,  24  Stat.  L.  379,  U.  S.  Comp.  Stat.  1901,  P.  3154,  3  Fed.  Stat. 
Ann.  809,  et.  seq.     Known  as  the  Cullom  Act. 

Amendment  of  March  2,  1889,  25  Stat.  L.  855,  Chap.  382,  U.  S.  Comp. 
Stat.  1901,  p.  3158,  3  Fed.  Stat.  Ann.  852,  et.  seq. 

Amendment  of  February  10,  1891,  Chapter  128,  26  Stat.  L.  753,  U.  S. 
Comp.  Stat.  1901,  p.  3163,  3  Fed.  Stat.  839. 

Amendment  of  February  8,  1895,  Chap.  61,  28  Stat.  L.  643,  U.  S. 
Comp.  Stat.  1901,  p.  3171,  3  Fed.  Stat.  Ann.  851. 

Act  February  11,  1893,  27  Stat.  L.  443,  Chap.  83,  U.  S.  Comp.  Stat. 
1901,  p.  3173,  3  Fed.  Stat.  Ann.  855.     Known  as  the  Testimony  Act. 

Act  February  11,  1903,  Chapter  544,  32  Stat.  L.  823,  U.  S.  Comp.  Stat. 
Supp.  1907,  10  Fed.  Stat.  Ann.  199.     Known  as  the  Expediting  Act. 

Act  February  19,  1903,  Chap.  708,  32  Stat.  L.  847,  U.  S.  Comp.  Stat. 
Supp.  1907,  p.  880,  10  Fed.  Stat.  Ann.  170.     Known  as  the  Elkins  Act. 

Act  February  25,  1903,  Chap.  755,  32  Stat.  L.  903,  10  Fed.  Stat.  Ann. 
173,  being  section  one  of  the  Appropriation  Act. 

Act  January  29,  1906,  34  Stat.  L.  584,  Chap.  3591,  U.  S.  Comp.  Stat. 
Supp.  1907,  p.  892,  Fed.  Stat.  Ann.  Supp.  1907,  p.  167.  Known  as  the 
Hepburn  Act. 

Act  June  30,  1906,  Chap.  3920,  34  Stat.  L.  798,  U.  S.  Comp.  Stat.  Supp. 
1907,  p.  900,  Fed.  Stat.  Ann.  Supp.  1907,  p.  382. 

Act  April  13,  1908,  35  Stat.  L.  60,  Chap.  143. 
§  500.     Scope  of  act  to  regulate  commerce. 

501.  Not  applicable  to  intrastate  transportation. 

502.  Terms  "common  carrier,"  "railroad,"  and  "transportation"  de- 

fined. 

503.  Duty  of  carrier  to  furnish  transportation  and  to  establish  through 

routes. 

504.  All  transportation  charges  must  be  reasonable. 

505.  Free  service,  with  certain  exceptions,  prohibited  and  penalties  pre- 

scribed. 

506.  Eailroad   companies  prohibited    from   transporting   commodities   in 

which  they  are  interested  with  certain  exceptions. 

507.  Terms  under  which  switch  connections  shall  be  made. 

508.  Definition  and  prohibition  of  unjust   discrimination. 

509.  Undue  and  unreasonable  preference  prohibited. 

510.  Carriers    shall    accord    reasonable    and    equal    facilities    for    inter- 

change of  traffic. 

359 


360  Acts  Kegulating  Commerce. 

511.  Eule  as  to  long  and  short  hauls. 

512.  Pooling  of  freights  and  division  of  earnings  prohibited. 

513.  Carriers  shall  file,  print  and  keep  public  schedules  of  rates. 

514.  Eegulations    as    to    printing    and    posting    schedules    of    rates    for 

freight  moving  through  foreign  countries  from  and  to  any  place 
in  the  United  States. 

515.  No  change  of  schedules  of  rates  shall  be  made  without  notice. 

516.  Names  of  all  carriers  parties  to  schedules  must  be  specified. 

517.  Carriers  shall  file  contracts  relating  to  traffic  arrangements. 

518.  Commission  may  prescribe  form  of  schedules. 

519.  No    carrier    shall   participate    in    interstate    commerce    unless    the 

charges  therefor  are  published,  and  no  such  carrier  shall  deviate 
from  the  published  schedules. 

520.  Preference  and  precedence  may  be  given  military  traffic  in  time  of 

•war, 

521.  Corporations  violating  the  act  to  regulate  commsrce  guilty  as  indi- 

viduals and  punishment  prescribed. 

522.  Eebate.      Punishment    for    offering,    granting,    soliciting    or    ac- 

cepting. 

523.  Act  of  officer  or  agent,  when  binding. 

524.  Carrier  filing  or  participating  in  rate  bound  thereby. 

525.  Forfeiture   for   rebating   in   addition   to   penalties.     Limitation    of 

six  years  fixed. 

526.  Contracts    and    combinations    to    prevent    continuous    carriage    of 

freight  prohibited. 

527.  Damages  and  attorneys  fees'  allowed  for  violations. 

528.  Where  to   sue  for  damages.     Compulsory  attendance  of  witnesses 

and  production  of  papers. 

529.  Penalties  for  violations  of  the  act. 

530.  Penalties  for  false  billing,  false  classification,  false  weighing,  etc., 

by  carriers. 

531.  Penalties  against  shippers  for  false  billing,  etc 

532.  Penalties  and  damages  for  inducing  discriminations. 

533.  Appointment  and  term  of  office  of  commissioners. 

534.  Power  and  duty  of  commissioners. 

535.  Power   of  courts  to   punish  for   disobedience,  witness   not   excused 

because  testimony  may  incriminate. 

536.  Eight   to   take   testimony   by    deposition    and   the   manner   thereof 

prescribed. 

537.  Persons  who  may  file  complaints  before  the  commission  and  prac- 

tice with  reference  thereto. 

538.  Eeports  of  commission  on  investigations,  how  made  and  published. 

539.  Power  of  commission  to  determine  and  prescribe  just  and  reason- 

able rates,  regulations  and  practices. 

540.  When  orders  take  effect  and  how  long  continue  unless  modified  or 

set  aside  by  the  commission  or  a  court. 

541.  Division  of  joint  rate  may  be  prescribed  by  commission. 

542.  Through   routes   and   joint   rates   may   be   established   by   commis- 

sion. 


Acts  Kegulating  Commerce.  361 

543.  Charges   for  instrumentalities   furnished   by   shipper   must   be   rea- 

sonable. 

544.  Enumeration  of  powers  of  commission  not  exclusive. 

545.  Award  of  damages  shall  be  made  by  commission  after  hearing. 

546.  Carrier  failing  to  comply  with  order  for  reparation,  suit  may  be 

brought  thereon  in  United  States  circuit  courts,  the  order  being 
prima  facie  evidence  of  right  to  recover. 

547.  Limitation  on  action  for  damages. 

548.  All  parties  jointly  awarded  damages  may  sue  as  plaintiffs  against 

all  carriers  parties  to  the  award. 

549.  Service  of  orders  of  commission. 

550.  Commission  may  suspend  or  modify  its  orders. 

551.  Punishment   for  knowingly  disobeying  an   order  issued   under  sec- 

tion fifteen. 

552.  District   attorney   and   attorney-general   to   prosecute.      Special   at- 

torneys may  be  employed. 

553.  Courts  may  enforce   obedience   to   commission's  orders,  mandatory 

or  otherwise. 

554.  Appeals  to  supreme  court,  priority  of  hearing. 

555.  Venue  of  suits  to  enjoin,  set  aside,  annul,  or  suspend  an  order  ol 

the  commission. 

556.  Expediting  act  applicable  to  such  suits  as  well  as  suits  to  enforce 

orders  of  commission. 

557.  Limitation  on  right  to  grant  injunction  against  commission 's  order. 

Provisions  for  apj^eal  from  interlocutory  order. 

558.  Schedules,  contracts,  etc.,  must  be  filed  with  the  commission,  and, 

when  filed,  original  or  certified  copy  prima  facie  evidence. 

559.  Kehearings  may  be  granted  by  the  commission. 

560.  Procedure  before  the  commission. 

561.  Salaries  and  expenses  of  the  commission. 

562.  Principal  office  of  commission  in  Washington,  but  may  prosecute 

inquiries  elsewhere. 

563.  Annual  reports  required   and   what   they   shall   contain.      Penalties 

for  failure  to  make. 

564.  Commission  may  prescribe   form   of  keeping  accounts  and  inspect 

same. 

565.  Penalties    for    failure    to    keep    accounts    and    for    falsifying    the 

record. 

566.  Penalty  for  an  examiner  divulging  information  received  as  such. 

567.  United   States   circuit   and   district   courts  may,   upon   application, 

of  Attorney  General  at  request  of  commission,  enforce  provisions 
of  act. 

568.  Commission  may  employ  agents  or  examiners. 

569.  Eeceiving  carrier  liable  for  loss,  remedy  cumulative. 

570.  Annual  reports  by  commission  to  Congress. 

571.  Circumstances  under  which  reduced  or  free  fares  and  rates  may  be 

given. 

572.  Existing  remedies  not  abridged  or  altered.     Pending  litigation  not 

affected. 


362  Acts  Regt'latixg  Commerce.  [§500. 

573.  InterchangealDle  mileage  tickets,  how  issued. 

574.  Discrimination   may  be   prevented   by  writ   of   mandamus,   remedy 

cumulative. 

575.  Number,    terms,    qualifications,    salary    and    appointment    of    com- 

missioners. 

576.  Existing  laws  as  to  obtaining  testimony  applicable  to  act. 

577.  Eepealing  conflicting  laws  not  to  affect  pending  suits. 

578.  Time  of  taking  effect  of  act. 

579.  Parties  defendant  other  than  carriers  in  suit  to  enforce  provisions 

of  act. 

580.  Equitable  proceedings  may  be  instituted  by  the  commission  to  re- 

strain discrimination  or  departure  from  published  rates. 

581.  Immunity  and  compulsory  attendance  of  witnesses,  production  of 

books  and  papers. 

582.  Expediting  act  applicable  to  suits  brought  under  direction  of  at- 

torney-general. 

583.  Eepealing    clause   not    affecting   pending    suits    or   accrued    rights. 

When  act  takes  effect. 

584.  Certain   cases   given   precedence   and   hearing   expedited.      Hearing 

before  three  judges. 

585.  Direct  appeal  to  Supreme  Court. 

586.  Compulsory  attendance  of  witnesses  and  production  of  papers  pro- 

vided for. 

587.  Amendment  to  act  making  compulsory  attendance  of  witnesses  and 

production  of  papers. 

§  500.  Scope  of  act  to  regulate  commerce. — That  the  provi- 
sions of  this  act  shall  apply  to  any  corporation  or  any  person 
or  persons  engaged  in  the  transportation  of  oil  or  other  com- 
modity, except  water  and  except  natural  or  artificial  gas,  by 
means  of  pipe  lines,  or  partly  by  pipe  lines  and  partly  by  rail- 
road, or  partly  by  pipe  lines  and  partly  by  water,  who  shall  be 
considered  and  held  to  be  common  carriers  within  the  meaning 
and  purpose  of  this  act,  and  to  any  common  carrier  or  carriers 
engaged  in  the  transportation  of  passengers  or  property  wholly 
by  railroad,  or  partly  by  railroad  and  partly  by  water  when 
both  are  used  under  a  common  control,  management,  or  arrange- 
ment for  a  continuous  carriage  or  shipment,  from  one  state  or 
territory  of  the  United  States,  or  the  District  of  Columbia,  to 
any  other  state  or  territory  of  the  United  States,  or  the  District 
of  Columbia,  or  from  one  place  in  a  territory'-  to  another  place 
in  the  same  territory,  or  from  any  place  in  the  United  States 
to  an  adjacent  foreign  country,  or  from  any  place  in  the  United 
States  through  a  foreign  comitry  to  any  other  place  in  the  United 
States,  and  also  to  the  transportation  in  like  manner  of  prop- 


§  500.]  Acts  Regulating  Commerce.  363 

erty  shipped  from  any  place  in  the  United  States  to  a  foreign 
country,  and  carried  from  such  phiee  to  a  port  of  transshipment, 
or  shipped  from  a  foreign  country  to  any  place  in  the  United 
States  and  carried  to  such  place  from  a  port  of  entry  either  in 
the  United  States  or  an  adjacent  foreign  country. 

Paragraph  one  of  section  one  of  act  to  regulate  commerce,  as 
amended  by  act  of  June  29,  1906.    The  original  act  read: 

"That  the  provisions  of  this  act  shall  apply  to  any  common 
carrier  or  carriers  engaged  in  the  transportation  of  passengers 
or  property  wholly  by  railroad,  or  partly  by  railroad  and  partly 
by  water  when  both  are  used,  under  a  common  control,  manage- 
ment or  arrangement,  for  a  continuous  carriage  or  shipment, 
from  one  state  or  territory  of  the  United  States,  or  the  District 
of  Columbia,  to  any  other  state  or  territory  of  the  United  States, 
or  the  District  of  Columbia,  or  from  any  place  in  the  United 
States  to  an  adjacent  foreign  country,  or  from  any  place  in 
the  United  States  through  a  foreign  country  to  any  other  place 
in  the  United  States,  and  also  to  the  transportation  in  like  man- 
ner of  property  shipped  from  any  place  in  the  United  States  to 
a  foreign  country  and  carried  from  such  place  to  a  port  of  trans- 
shipment, or  shipped  from  a  foreign  country  to  any  place  in  the 
United  States  and  carried  to  such  place  from  a  port  of  entry 
either  in  the  United  States  or  an  adjacent  foreign  country." 

Original  act  constitutional.  Int.  Com.  Com.  v.  Brimson,  154 
U.  S.  447,  448,  38  L.  Ed.  1047,  14  Sup.  Ct.  1125. 

A  purely  intrastate  carrier  not  participating  in  a  through 
movement  is  not  within  the  act  because  the  ultimate  destination 
of  the  traffic  may  be  beyond  the  state.  Mo.  &  111.  Rd.  Tie  & 
Lumber  Co.  v.  Cape  etc.  R.  Co.,  1  I.  C.  C.  R.  30,  1  I.  C.  R.  607; 
New  Jersey  Fruit  Ex.  v.  Central  R.  Co.  of  New  Jersey,  2  I. 
C.  C.  R.  142,  2  I.  C.  R.  84.  Express  companies  not  within  orig- 
inal act,  though  railroads  conducting  an  express  business  are. 
Re  Express  Companies,  1  I.  C.  C.  R.  349,  1  I.  C.  R.  677 ;  United 
States  v.  Morsman,  42  Fed.  448. 

A  state  road  owning  no  rolling  stock  but  used  as  a  means  of 
mterstate  traffic  within  act.  Heck  v.  E.  T.  V.  &  G.  R.  Co.,  1 
I.  C.  C.  R.  495,  1  I.  C.  R.  775.  An  interstate  bridge  subject  to 
act.  Ky.  &  Ind.  Bridge  Co.  v.  L.  &  N.  R.  Co.,  2  I.  C.  C.  R.  162, 
2  I.  C.  R.  102.  Order  not  enforced.  Same  style  case,  37  Fed. 
567.  Commerce  between  points  in  the  state  but  passing  through 
another  state  is  interstate  commerce.     New  Orleans  Cotton  Ex- 


364  Acts  Reglxating  Commerce.  [§  500. 

change  v.  Cincinnati,  N.  0.  &  T.  P.  R.  Co.,  2  I.  C.  C.  R.  375, 
2  I.  C.  R.  289 ;  Milk  Producers  Asso.  v.  Delaware  etc.  R.  Co.,  7 
I.  C.  C.  R.  92,  162.  Foreign  carriers  participating  in  traffic  from 
points  in  the  United  States  to  adjacent  countries  subject.  Re 
Investigation  Acts  Grand  Trunk  Railway  of  Canada,  3  I.  C.  C. 
R.  89,  2  I.  C.  R.  496.  Independent  water  lines  not  subject.  New 
Orleans  Cotton  Exchange  v.  111.  Cent.  R.  Co.,  3  I.  C.  C.  R.  534, 
562,  2  I.  C.  R.  777. 

When  a  state  carrier  engages  in  interstate  commerce  it  be- 
comes subject  to  the  act.  Mattingly  v.  Penn.  Co.,  3  I.  C.  C. 
R.  592,  2  I.  C.  R.  806.  State  steamboat  not  within  act.  Cape- 
hart  &  Smith  V.  L.  &  N.  R.  Co.,  4  I.  C.  C.  R.  265,  3  I.  C.  R.  278. 
"Common  control,  management  or  arrangement"  defined.  Bos- 
ton Fruit  &  Produce  Exchange  v.  New  York  and  New  England 
R.  Co.,  4  I.  C.  C.  R.  664,  3  I.  C.  R.  493.  See  same  case,  5  I.  C.  C. 
R.  1,  3  I.  C.  R.  604.'  See  also  Trammel  Railroad  Commission  of 
Ga.  V.  Clyde  Steamship  Company,  5  I.  C.  C.  R.  324,  4  I.  C.  R. 
120.  All  roads,  including  purely  state  roads,  participating  in  an 
interstate  haul  subject  to  act.  James  and  IMayer  Buggy  Com- 
pany V.  Cincinnati,  N.  0.  &  T.  P.  R.  Co.,  4  1.  C.  C.  R.  744,  3  I.  C. 
R.  682.  Order  not  enforced  in  circuit  but  was  enforced  in  Su- 
preme Court.  Int.  Com.  Com.  v.  Cincinnati,  N.  0.  &  T.  P.  R. 
Co.,  56  Fed.  925,  162  U.  S.  184,  40  L.  Ed.  935,  16  Sup.  Ct.  700. 
Same  rule  when  all  water  carrier  joins.  R.  R.  Com.  of  Florida 
V.  Savannah,  Fla.  &  W.  R.  Co.,  5  I.  C.  C.  R.  13,  136,  3  I.  C.  R. 
688,  750.  Order  not  enforced.  Savannah,  F.  &  ,W.  R.  Co.  v. 
Florida  Fruit  Exchange,  167  U.  S.  512,  42  L.  Ed.  257,  17  Sup. 
Ct.  998.  The  charter  of  the  Northern  Pacific  Railroad  Company 
does  not  exempt  it  from  control  of  act.  Raworth  v.  N.  Pac.  R. 
Co.,  5  I.  C.  C.  R.  234,  3  I.  C.  R.  857.  Merchants  Union  of  Spo- 
kane Falls  V.  N.  Pac.  R.  Co.,  5  I.  C.  C.  R.  478,  4  I.  C.  R.  183. 
Order  not  enforced.  Farmers'  L.  &  T.  Co.  v.  N.  Pac.  R.  Co., 
83  Fed.  249.  Receivers  of  railroad  companies  subject  to  act. 
Independent  Refiners  Asso.  v.  W.  N.  Y.  &  Penn.  R.  Co.,  6  I. 
C.  C.  R.  378,  386.  Order  not  enforced.  W.  N.  Y.  &  P.  R.  Co. 
V.  Penn.  Refining  Co.,  137  Fed.  343,  70  C.  C.  A.  23.  Affirmed, 
208  U.  S.  208,  52  L.  Ed.  456,  28  Sup.  Ct.  .  Electric  Railway 
partly  in  Maryland  and  partly  in  District  of  Columbia  subject 
to  act.  Wilson  v.  Rock  Creek  Ry.  Co.,  7  I.  C.  C.  R.  83.  Does 
not  apply  to  transportation  by  wagon.  Cary  v.  Eureka  Springs 
Ry.  Co.,  7  I.  C.  C.  R.  286.    Stock  Yards  Terminal  Road  at  Chi- 


§  500.]  Acts  Regulating  Commerce.  365 

cago  not  a  common  carrier.  Cattle  Raisers  Asso.  of  Texas  v. 
Ft.  Worth  &  D.  C.  Ry.  Co.,  7  I.  C.  C.  R.  513,  555-a.  Order  not 
enforced.  98  Fed.  173;  103  Fed.  241);  43  C.  C.  A.  209;  186  U. 
S.  320,  46  L.  Ed.  1182,  22  Sup.  Ct.  824.  Import  and  export 
traffic  over  rail  carriers  within  jurisdiction.  Ocean  carriers  not. 
Kemble  v.  Boston  &  A.  R.  Co.,  8  I.  C.  C.  R.  110,  119.  The  de- 
terminating features  of  a  through  shipment  is  the  contract. 
Matter  of  Alleged  Unlawful  Rates  and  Practices  in  Transporta- 
tion of  Cotton,  8  I.  C.  C.  R.  121.  "Within  act  when  engaged  with 
other  carriers  in  through  transportation.  Alleged  Violation  of 
Act  by  St.  L.  &  S.  F.  Ry.  Co.,  8  I.  C.  C.  R.  290,  Penn.  Millers 
Asso.  V.  Philadelphia  &  R.  Ry.  Co.,  8  I.  C.  C.  R.  531,  549.  Ap- 
plies on  a  movement  from  Canada  to  United  States,  Cist.  v.  Mich. 
Cent.  R.  Co.,  10  I.  C.  C.  R.  217.  Shipment  from  one  to  another 
local  point  even  though  there  may  be  an  intention  to  thereafter 
ship  to  another  and  an  interstate  point  is  entitled  to  the  local 
rate.  Hope  Cotton  Oil  Co.  v.  Tex.  &  Pac.  Ry.  Co.,  10  I.  C.  C. 
R.  696,  703.  After  a  car  has  arrived  at  its  destination  a  subse- 
quently contracted  for  switching  movement  to  another  place  in 
the  same  city  and  state  is  not  within  the  act.  St".  Louis  Hay  and 
Grain  Company  v.  Chicago,  B.  &  Q.  R.  Co.,  11  I.  C.  C.  R.  82. 
Refrigeration  charges  within  act.  Re  Charges  for  Transporta- 
tion and  Refrigeration  of  Fruit,  11  I.  C.  C.  R.  129.  Stage  line 
over  which  part  of  a  through  movement  is  had  not  within  act. 
Wylie  V.  N.  Pac.  Hy.  Co..  11  I.  C.  C.  R.  145.  Baggage  transfer 
not  within  act.  Re  Exchange  of  Free  Transportation,  12  I.  C. 
C.  R.  39.  A  ferry  transport  joining  in  a  through  route  and 
joint  rate  is  within  act.  Enterprise  Transportation  Co.  v. 
Penn.  R.  Co.,  12  I.  C.  C.  R.  326,  335,  336.  While  a  shipment 
to  a  local  point  with  intention  to  thereafter  make  a  new  contract 
for  shipment  to  an  interstate  point  is  not  within  the  act,  the  car- 
rier must  not  act  as  agent  of  the  shipi)er  in  making  the  reconsign- 
ment.  Morgan  v.  M.  K.  &  T.  Ry.  Co.,  12  I.  C.  C.  R.  525.  No 
distinction  betAveen  electric  and  steam  roads.  Chicago  &  M. 
Electric  R.  Co.  v.  111.  Cent.  R.  Co.,  13  I.  C.  C.  R.  20.  No  juris- 
diction over  shipments  from  ports  of  United  States  to  a  foreign 
country  not  adjacent  to  this  country.  Cosmopolitan  Shipping 
Co.  V.  Hamburg  Am.  Packet  Co.,  13  I.  C.  C.  R.  266,  272,  273. 
274;  Lykes  S.  S.  Line  v.  Commercial  T^nion.  13  T.  C.  C.  R.  310. 
Interstate  movement  regarded  as  an  entii-ety  and  all  carriers 
participating  therein  are  subject  to  the  act.     Subject  fully  dis- 


366  Acts  Regulating  Commerce.  [§  500. 

cussed  and  cases  cited.  Leonard  v.  Kansas  City  S.  Ry.  Co.,  13 
I.  C.  C.  R.  573.  A  terminal  corapanj'-  o\vned  by  the  same  in- 
terests as  a  railroad  within  act.  ''Railroad"  includes  depots, 
yards  and  grounds.  Eichenberg  v.  So.  Pac.  Co.,  14  I.  C.  C.  R. 
250.  Order  not  enjoined.  So.  Pac.  T.  Co.  v.  Int.  Com.  Com.,  166 
Fed.  13-i.  Interstate  carriers  by  water  are  subject  to  act  only  in 
respect  to  traffic  transported  under  a  common  control,  manage- 
ment or  arrangement  with  a  rail  carrier.  With  respect  to  other 
traffic  such  water  carriers  are  exempt  from  the  provisions  of  the 
act.  Re  Jurisdiction  Over  Water  Carriers,  15  I.  C.  C.  R.  205. 
Switching  not  within  act.  Chicago,  IM.  &  St.  P.  Ry.  Co.  v. 
Becker,  32  Fed.  849.  Water  carrier  from  one  state  to  another 
not  joining  in  a  through  bill  of  lading  with  rail  carriers  not 
subject  to  act.  Terms  of  section  defined.  Ex  parte  Koehler,  30 
Fed.  867.  A  bridge  crossing  a  stream  from  one  state  to  another 
which  is  leased  to  a  railroad  is  not  a  common  carrier.  Ky.  & 
Ind.  Bridge  Co.  v.  L.  &  N.  R.  Co.,  37  Fed.  567.  A  shipment  from 
one  to  another  point  in  a  state  and  which  was  immediately  re- 
shipped  by  the  agent  of  consignor  to  a  point  without  the  state 
within  section.  Cutting  v.  Fla.  Ry.  &  Nav.  Co.,  46  Fed.  641. 
A  state  road  b}^  joining  in  a  contract  for  through  traffic  becomes 
subject  to  the  act  to  regulate  commerce.  Augusta  S.  R.  Co.  v. 
Wrightsville  &  T.  R.  Co.,  74  Fed.  522 ;  United  States  v.  Seaboard 
Ry.  Co..  82  Fed.  563;  Interstate  Stock  Yards  Co.  v.  Indianapolis 
U.  Ry.  Co..  99  Fed.  472;  Cassatt  v.  IMitchell  Coal  &  Coke  Co., 
150  Fed.  32,  81  C.  C.  A.  80.  10  L.  R.  A.  (N.  S.)  99;  Mitchell 
Coal  &  Coke  Co.  v.  Cassatt.  207  U.  S.  181,  187.  52  L.  Ed.  160, 
163.  28  Sup.  Ct.  108.  110;  U.  S.  v.  New  York,  C..&  H.  R.  R.  Co. 
153  Fed.  630.  Affirmed,  New  York  C.  &  H.  R.  R.  Co.,  212  U. 
S.  481.  500.  53  L.  Ed.  ,  29  Sup.  Ct.  304.  United  States  v. 
Standard  Oil  Co.,  155  Fed.  305.  Reversed  on  another  ground. 
Standard  Oil  Co.  v.  U.  S.,  164  Fed.  376,  C.  C.  A.  .  United 
States  V.  Union  Stock  Yards  Co.  of  Omaha.  161  Fed.  919; 
United  States  v.  Sioux  City  Stock  Yards.  162  Fed.  556.  If  the 
state  carrier  receives  no  freight  on  nor  issues  through  bills  of 
lading  it  is  not  subject.  Int.  Com.  Com.  v.  Bellaire  Z.  &  C.  Ry. 
Co.,  77  Fed.  942;  United  States  v.  Chicago.  K.  &  S.  R.  Co.,  81 
Fed.  783;  United  States  v.  Geddes,  131  Fed.  452,  65  C.  C.  A. 
320;  State  of  Iowa  v.  Chicago.  M.  &  St.  P.  Ry.  Co..  33  Fed.  391, 
145  U.  S.  631,  36  L.  Ed.  857,  12  Sup.  Ct.  978.  Transportation 
from  one  point  to  another  in  the  same  state,  though  passing 


§  500.]  Acts  Regulating  Commerce.  367 

through  another  state,  is  not  interstate  commei'ce.  United  States 
V.  Lehigh  Valley  R.  Co.,  115  Fed.  373;  Lehigh  Valley  R.  Co. 
V.  Pennsylvania,  145  U.  S.  192,  36  L.  Ed.  672,  12  Sup.  Ct.  806. 
Contra  United  States  v.  Delaware,  L.  &  W.  R.  Co.,  152  Fed. 
269,  citing  Hanley  v.  Kansas  City  etc.  R.  Co.,  187  U.  S.  617, 
47  L.  Ed.  333,  23  Sup.  Ct.  214 ;  Lord  v.  Goodall  N.  &  P.  Steam^ 
ship  Co.,  102  U.  S.  541;  26  L.  Ed.  224;  Pacific  Coast  S.  S.  Co. 
V.  Railroad  Comrs.,  9  Sawy.  253,  18  Fed.  10.  Hanley  v.  R.  R., 
supra,  definitely  settles  the  question  that  such  transportation  is 
interstate  commerce.  Private  car  companies  furnishing  their 
cars  indiscriminately  to  carriers  subject  to  act.  Int.  Com.  Com. 
V.  Reichmann,  145  Fed.  235. 

The  test  of  subjection  to  the  act  is  through  routing  in  inter- 
state commerce.  United  States  v.  "Wood,  145  Fed.  405,  411. 
All  carriers  engaged  in  transporting  interstate  freight  by  a  con- 
tinuous passage  are  within  the  regulations  of  interstate  com- 
merce by  Congress.  United  States  v.  Colorado  and  N.  W.  R. 
Co.,  157  Fed.  321,  85  C.  C.  A.  27;  same  style,  157  Fed.  342,  85 
C.  C.  A.  48.  Phillips,  district  judge,  dissenting  in  an  able  opin- 
ion. Chicago,  B.  &  Q.  R.  Co.  v.  United  States,  157  Fed.  830, 
85  C.  C.  A.  194. 

A  water  carrier  operating  entirely  within  a  state  but  engaged 
in  transporting  interstate  commerce  is  subject  to  regulation  by 
Congress.  The  steamer  Daniel  Ball,  10  AVall,  77  U.  S.  557,  19 
L.  Ed.  999.  Exportation  begins  when  goods  are  committed  to  a 
common  carrier  for  transportation  beyond  the  state.  Coe  v. 
Errol,  116  U.  S.  517,  29  L.  Ed.  715.  4  Sup.  Ct.  475.  A  local  car- 
rier transporting  interstate  commerce  under  through  bills  of  lad- 
ing is  engaged  in  interstate  commerce.  Cincinnati,  New  Orleans 
&  T.  P.  Ry.  Co.  V.  Int.  Com.  Com.,  162  U.  S.  184,  40  L.  Ed.  935, 
16  Sup.  Ct.  700.  For  commission  decision  see  James  &  Mayer 
Buggy  Co.  V.  Cincinnati,  N.  0.  &  T.  P.  Ry.  Co.,  4  I.  C.  C.  R. 
744,  2  I.  C.  R.  625,  3  id.  682,  Circuit  Court,  56  Fed.  925,  Circuit 
Court  of  Appeals,  64  Fed.  981,  13  U.  S.  App.  730.  Int.  Com. 
Com.  V.  Detroit,  G.  H.  &  M.  Ry.  Co.,  167  U.  S.  633,  42  L.  Ed. 
306,  17  Sup.  Ct.  986.  Affirming,  74  Fed.  803,  21  C.  C.  A.  103. 
Norfolk  &  W.  R.  Co.  v.  Penn.,  136  U.  S.  114,  34  L.  Ed.  394,  10 
Sup.  Ct.  958;  United  States  v.  Wood,  145  Fed.  405;  United 
States  v.  New  York  C.  &  II.  R.  R.  Co.,  153  Fed.  630,  632. 
Throu'-'-h  1f;insportation  without  through  bills  of  lading  make 
interstate  commerce  subject  to  the  act.    United  States  v.  Colo- 


368  Acts  Kegilating  Commerce.  [§501. 

rado  &  N.  W.  R.  Co.,  157  Fed.  321,  and  eases  cited.  Railroads 
that  share  in  an  agreed  interstate  rate  subject  to  act.  L.  &  N. 
R.  Co.  V.  Behlmer,  175  U.  S.  648,  44  L.  Ed.  309,  20  Sup.  Ct.  209. 
See  same  ease  6  I.  C.  C.  R.  257,  4  I.  C.  R.  520,  71  Fed.  835,  83 
Fed.  898,  28  C.  C.  A.  229,  42  U.  S.  App.  581.  Mere  intention  to 
continue  the  transportation  of  an  interstate  shipment  after  it 
reaches  its  destination  to  another  point  in  the  same  state  as  such 
destination  will  not  make  the  last  shipment  interstate.  Gulf 
etc.  Ry.  Co.  v.  Texas,  204  U.  S.  403,  51  L.  Ed.  540,  27  Sup.  Ct. 
360.  See  Judson  Int.  Com.  §§  104  to  118.  Express  companies 
under  the  amendment  of  June  29,  1906,  included.  United 
States  V.  Wells  Fargo  Ex.  Co.,  161  Fed.  606.  American  Ex- 
press Co.  V.  United  States,  212  U.  S.  522,  53  L.  Ed.  ,  29 
Sup.  Ct. 

§  501.  Not  applicable  to  intrastate  transportation. — Provided, 
however,  that  the  provisions  of  this  act  shall  not  apply  to  the 
transportation  of  passengers  or  property,  or  to  the  receiving,  de- 
livering, storage,  or  handling  of  property  Avholly  within  one 
state  and  not  shipped  to  or  from  a  foreign  coimtry^  from  or  to 
any  state  or  territory  as  aforesaid. 

Proviso  to  paragraph  one,  section  one,  as  originally  enacted. 
For  annotations,  see  next  preceding  section. 

§  502.  Terms  "common  carrier,"  "railroad,"  and  "transporta- 
tion" defined. — The  term  "common  carrier"  as  used  in  this  act 
shall  include  express  companies  and  sleeping  car  companies. 
The  term  "railroad,"  as  used  in  this  act,  shall  include  all 
bridges  and  ferries  used  or  operated  in  connection  with  any 
railroad,  and  also  all  the  road  in  use  by  anj''  corporation  oper- 
ating a  railroad,  whether  owned  or  operated  under  a  contract, 
agreement  or  lease,  and  shall  also  include  all  switches,  spurs, 
tracks  and  terminal  facilities  of  every  kind  used  or  necessary 
in  the  transportation  of  the  persons  or  property  designated 
herein,  and  also  all  freight  depots,  yards,  and  grounds  used  or 
necessary  in  the  transportation  or  delivery  of  any  of  said  prop- 
erty;  and  the  term  "transportation"  shall  include  cars  and  other 
vehicles  and  all  instrumentalities  and  facilities,  of  shipment  or 
carriage,  irrespective  of  o^Miership  or  of  any  contract,  express 
or  implied,  for  the  use  thereof  and  all  services  in  connection  with 
the  receipt,  delivery,  elevation,  and  transfer  in  transit,  ventila- 
tion, refrigeration  or  icing,  storage,  and  handling  of  property 
transported, 


§  503.]  Acts  Regulating  Commerce.  369 

Paragraph  two.  section  one,  of  act  as  amended  act  of  June  29, 
1906.     The  paragraph  of  the  original  act  read: 

The  term  '^railroad"  as  used  in  this  act  shall  include  all 
bridges  and  ferries  used  or  operated  in  connection  with  any  rail- 
road, and  also  all  the  road  in  use  by  any  corporation  operating 
a  railroad,  whether  owned  or  operated  under  a  contract,  agree- 
ment, or  lease;  and  the  term  ''transportation"  shall  include  all 
instrumentalities  of  shipment  or  carriage." 

A  privately  owned  stock  car  not  a  common  carrier.  Burton 
Stock  Car  Co.  v.  Chicago.  B.  &  Q.  R.  Co.,  1  I.  C.  C.  R.  132,  1  I. 
C.  R.  329,  353.  Express  companies  not  included  in  original  act. 
Re  Express  Companies,  1  I.  C.  C.  R.  349,  369,  1  I.  C.  R.  677.  Re- 
port of  Commission  1887,  1  I.  C.  R.  650,  657.  An  interstate 
bridge  a  common  carrier.  Ky.  &  I.  Bridge  Co.  v.  L.  &  N.  R. 
Co.,  2  I.  C.  C.  R.  162,  2  I.  C.  R.  102.  Contra  holding  the  bridge 
company  not  a  common  carrier.  Ky.  &  I.  Bridge  Co.  v.  L.  &  N. 
R.  Co.,  37  Fed.  567.  A  stock  yards  terminal  road  not  a  common 
carrier.  Cattle  Raisers  Asso.  v.  Ft.  W.  &  D.  C.  Ry.  Co.,  7  I.  C. 
C.  R.  513,  555-a.  Order  not  enforced.  Int.  Com.  Com.  v.  Chi- 
cago. B.  &  Q.  R.  Co.,  98  Fed.  173,  103  Fed.  249,  43  C.  C.  A.  209, 
186  U.  S.  320.  46  L.  Ed.  1182.  22  Sup.  Ct.  824.  Stage  line  not  a 
common  carrier  within  meaning  of  this  act.  "Wylie  v.  N.  Pac. 
Ry.  Co.,  11  I.  C.  C.  R.  145.  Baggage  company  not  within  act, 
and  "common  carrier"  means  a  carrier  subject  to  the  act.  Re 
Right  of  R.  R.  Co's.  to  Exchange  Free  Transportation  with 
Local  Transfer  Co's.  12  I.  C.  C.  R.  39.  A  ferry  transportation 
company  entering  into  a  through  transportation  arrangement  is 
a  common  carrier.  Enterprise  Trans.  Co.  v.  Penn.  R.  Co.,  12 
I.  C.  C.  R.  326,  335.  "Railroad"  defined.  Eichenberg  v.  So. 
Pac.  Co.,  14  I.  C.  C.  R.  250.  "Common  carrier"  defined.  Unit- 
ed States  V.  Sioux  City  Stock  Yards  Co.,  162  Fed.  556. 

§  503.  Duty  of  carrier  to  furnish  transportation  and  to  es- 
tablish through  routes. — And  it  sliall  be  the  duty  of  every  car- 
rier subject  to  the  provisions  of  this  act  to  provide  and  furnish 
such  transportation  upon  reasonable  request  therefor,  and  to 
establish  through  routes  and  just  and  reasonable  rates  applicable 
thereto. 

Added  to  paragraph  two,  section  one,  by  act  of  June  29,  1906. 

The  original  act  did  not  compel  nor  empower  the  commission 
1o  compel  the  estaljlislinicrit  of  through  routes.  Chicago  &  A. 
R.  Co.  V.  Penn.  Co.,  1  I.  C.  C.  R.  S6,  1  I.  C.  R.  357;  Little  Rock 


370  Acts  Regttt.ating  Commerce.  [§  504. 

&  I\r.  R.  Co.  V.  East  Temi..  Ya.  &  Ga.  E.  Co..  3  I.  C.  C.  R.  1,  2 
I.  C.  R.  45-4,  citing  Englisli  law  and  I'ci'omiiiciiding  amendments. 
Commercial  Club  of  Omaha  v.  Chicago,  Rock  I.  &  P.  Ry.  Co.,  6 
I.  C.  C.  R.  647.  677;  Gustin  v.  111.  Cent.  R.  Co..  7  I.  C.  C.  R. 
376.  And  carriers  could  make  through  routes  with  (me  road 
and  not  with  others.  Capehart  v.  L.  &  N.  R.  Co.,  4  I.  C.  C.  R. 
265,  3  I.  C.  R.  278.  AYhen  through  routes  are  established  they 
must  be  kept  open  to  public  use.  Consolidated  Forwarding  Co. 
V.  So.  Pac.  Co.,  9  I.  C.  C.  R.  182,  205.  Order  enforced.  Int. 
Com.  Com.  v.  So.  Pac.  Co.,  123  Fed.  597,  132  Fed.  829.  Circuit 
court  reversed.  200  U.  S.  536,  50  L.  Ed.  585,  26  Sup.  Ct.  330. 
See  same  case,  10  I.  C.  C.  R.  590.  Through  route  ordered  es- 
tablished. Cattle  Raisers  Asso.  of  Texas  v.  Galveston,  H.  &  S. 
A.  Ry.  Co..  12  I.  C.  C.  R.  20;  Birmingham  Packing  Co.  v.  Tex. 
&  Pac.  Ry.  Co.,  12  I.  C.  C.  R.  29,  500;  American  National  Live 
Stock  Asso.  V.  Tex.  &  Pac.  Ry.  Co.,  12  I.  C.  C.  R.  32;  Star  Grain 
&  Lumber  Co.  v.  A.  T.  &  S.  F.  Ry.  Co.,  14  I.  C.  C.  R.  364. 
Through  routes  and  through  rates  discussed  and  defined.  Re 
Through  Routes  and  Through  Rates,  12  I.  C.  C.  R.  163.  In- 
demnity may  be  required  of  an  irresponsible  carrier  before  com- 
pelling through  route  and  joint  rate.  Enterprise  Transportation 
Co.  V.  Penn.  R.  Co.,  12  I.  C.  C.  R.  326.  Where  a  reasonable 
through  route  exists,  the  law  does  not  require  the  commission  to 
establish  another  through  route.  Loup  Creek  Colliery  Co.  v. 
Va.  Ry.  Co.,  12  I.  C.  C.  R.  471 ;  Stedman  v.  Chicago  &  N.  W.  R. 
Co.,  13  I.  C.  C.  R.  167;  Chicago  &  M.  Elec.  R.  Co.  v.  111.  Cent. 
R.  Co.,  13  I.  C.  C.  R.  20;  Cardiff  Coal  Co.  v.  Chicago,  M.  &  St. 
P.  R.  Co.  13  I.  C.  C.  R.  460;  Crane  R.  Co.  v.  Pliiladelphia  &  R. 
Ry.  Co.,  15  I.  C.  C.  R.  248.  When  all  parties  are  before  it,  the 
commission  will  fix  through  routes  and  joint  rates.  Merchants 
Traffic  Asso.  v.  New  York,  N.  H.  and  H.  R.  Co.,  13  I.  C.  C.  R. 
220.  Section  cited  Enterprise  Fuel  Co.  v.  Penn.  R.  Co.,  16  I. 
C.  C.  R.  219,  221. 

§  504.  All  transportation  charges  must  be  reasonable. — All 
charges  made  for  any  service  rendered  or  to  be  rendered  in  the 
transportation  of  passengers  or  property  as  aforesaid,  or  in  con- 
nection therewith,  shall  be  just  and  reasonable;  and  every  un- 
just and  unreasonable  charge  for  such  service,  or  any  part  there- 
of, is  prohibited  and  declared  to  be  unlawful. 

Paragraph  three,  section  one,  as  amended. 


§  504.]  Acts  Regulating  Commerce.  371 

The  old  act  read  as  f olllows : 

"All  charges  made  for  any  service  rendered  or  to  be  rendered 
in  the  transportation  of  passengers  or  property  as  aforesaid,  or 
in  connection  therewith,  or  for  the  receiving,  delivering,  storage, 
or  handling  of  such  property,  shall  be  reasonable  and  just ;  and 
every  unjust  and  unreasonable  charge  for  such  service  is  pro- 
hibited and  declared  to  be  unlawful." 

Provision  applies  to  exceptional  charges  under  section  four. 
Re  Southern  Railway  &  Steamship  Asso.  (Re  Petition  of  L.  & 
N.  R.  Co.)  1  I.  C.  C.  R.  31,  1  I.  C.  R.  278.  A  rate  might  not 
violate  this  section  yet  be  illegal  because  discriminatory.  Ray- 
mond V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  1  I.  C.  C.  R.  230,  1  I.  C. 
R.  627.  A  carrier  should  not  make  rates  for  the  purpose  of 
keeping  a  commodity  on  its  line.  Reynolds  v.  W.  N.  Y.  &  P. 
R.  Co.,  1  I.  C.  C.  R.  393,  1  I.  C.  R.  685.  What  must  be  consid- 
ered in  determining  the  reasonableness  of  a  rate.  Boston  Cham- 
ber of  Commerce  v.  Lake  Shore  etc.  R.  Co.,  1  I.  C.  C.  R.,  436, 

1  I.  C.  R.  754.  An  intermediate  local  rate  should  not  exceed 
the  through  rate  plus  the  local  back  to  the  intermediate  point. 
Martin  v.  So.  Pac.  Co.,  2  I.  C.  C.  R.  1,  2  I.  C.  R.  1.  Rates  may 
be  fixed  on  other  than  a  mileage  basis.  La  Crosse  M.  &  J.  Union 
V.  Chicago,  M.  &  St.  P.  R.  Co.,  ,1  I.  C.  C.  R.  629,  2  I.  C.  R.  9. 
All  surrounding  circumstances  and  conditions  must  be  consid- 
ered in  determining  what  is  a  reasonable  rate.  Bus.  INIen's  Asso. 
of  ]\Iinn.  V.  Chicago,  St.  P.  &  M. 'R.  Co.,  2  I.  C.  C.  R.  52,  2  I.  C. 
R.  41.  Apportionment  of  rates  between  different  parts  of  a  line 
may  be  considered.     Brady  v.  Penn.  R.  Co.,  2  I.  C.  C.  R.  131, 

2  I.  C.  R.  78.  No  jurisdiction  to  increase  rates.  Re  Chicago,  St. 
P.  &  K.  C.  R.  Co.,  2  I.  C.  C.  R.  231,  2  I.  C.  R.  137.  Question  a 
perplexing  one  involving  a  great  variety  of  situations.  Howell 
v.  N.  Y.,  L.  E.  &  W.  R.  Co.,  2  I.  C.  C.  R.  272,  2  I.  C.  R.  162.  Ex- 
cessive rates  not  justified  even  when  road  earns  little  more  than 
operating  expenses.  New  Orleans  Cotton  Ex.  v.  Cincinnati,  N. 
0.  &  T.  P.  R.  Co.,  2  I.  C.  C.  R.  375,  2  I.  C.  R.  289.  The  fact  that 
cost  of  transportation  is  exceedingly  great  ])y  reason  of  the  pe^ 
culiar  situation  of  a  road  should  l)e  considered.  Rice  v.  W.  N. 
Y.  &  Penn.  R.  Co.,  2  I.  C.  C.  R.  389,  2  F.  C.  R.  2i)8.  Through 
rates  may  be  proportionately  less  than  ]o(;al  rates.  Lippman  v. 
ill.  Cent.  R.  Co.,  2  I.  C.  C.  R.  584,  2  T.  C.  R.  414.  Long  mainte- 
nance of  ;\  rate  evidence  that  it  is  reasonably  low.  Logan  (North- 
westei'ii   Iowa  Grain   &  Slock'  Shippers  Asso.)    v.  Chicago  &  N, 


372  Acts  Eegttlating  Commerce.  [§504. 

W.  R.  Co.,  2  I.  C.  C.  R.  604,  2  I.  C.  R.  431.  Mileage  should  be 
considered.  MeMorran  v.  Grand  Trunk  R.  Co.,  3  I.  C.  C.  R. 
252,  2  I.  C.  R.  604.  Classification  of  freight  legal.  Thurber  v. 
N.  Y.  Cent.  &  H.  R.  R.  Co.,  3  I.  C.  C.  R.  473,  2  I.  C.  R.  742.  The 
proportion  of  a  through  rate  may  be  less  than  the  local.  New 
Orleans  Cotton  Ex.  v.  111.  Cent.  R.  Co.,  3  I.  C.  C.  R.  534,  2  I. 
C.  R.  777.  Equitably  graduated  charges  for  like  traffic  having 
regard  to  amount  of  traffic  is  just.  Lehmann  v.  So.  Pac.  Co.,  4 
I.  C.  C.  R.  1,  3  I.  C.  R.  80.  In  the  carriage  of  the  great  staples 
which  supply  an  enormous  business  and  which  in  market  value 
and  actual  cost  of  transportation  are  among  the  cheapest  articles 
of  commerce,  rates  yielding  moderate  profit  are  both  justifiable 
and  necessary.  Re  Alleged  Excessive  Freight  Rates  on  Food 
Products.  4  I.  C.  C.  R.  48,  3  I.  C.  R.  93,  104;  Mayor,  etc.  v.  A. 
T.  &  S.  F.  Ry.  Co.,  9  I.  C.  C.  R.  534,  Farmers'  etc.  Club  v.  A. 
T.  &  S.  F.  Ry.  Co.,  12  I.  C.  C.  R.  351,  360.  As  a  general  rule, 
the  charge  per  ton  mile  should  decrease  with  distance.  Manu- 
facturers &  Jobbers  Union  of  JMankato  v.  Minneapolis  &  St.  L. 
R.  Co.,  4  I.  C.  C.  R.  79,  3  I.  C.  R.  115;  Hilton  Lumber  Co.  v. 
Wilmington  etc.  R.  Co.,  9  I.  C.  C.  R.  17,  31.  Commodity  class 
rates  legal.  New  York  Board  of  Trade  v.  Penn.  R.  Co.,  4  I.  C. 
C.  R.  447,  3  I.  C.  R.  417.  Order  enforced.  Int.  Com.  Com.  v. 
Tex.  &  Pac.  Ry.  Co.,  52  Fed.  187,  57  Fed.  948,  6  C.  C.  A.  653, 
20  U.  S.  App.  1,  4  I.  C.  R.  408.  Circuit  court  reversed.  Texas 
&  Pac.  Ry.  Co.  v.  Int.  Com.  Com.,  162  U.  S.  197,  40  L.  Ed.  940, 
16  Sup.  Ct.  666.  Classification  and  group  rates  legal.  Coxe 
Bros.  &  Co.  V.  Lehigh  Valley  R.  Co.,  4  I.  C.  C.  R.  535,  3  I.  C. 
R.  460.  Order  not  enforced.  Int.  Com.  Com.  v.  Lehigh  Valley 
Ry.  Co.,  74  Fed.  784.  Elements  to  be  considered  in  fixing  rates 
on  perishable  fruits.  Boston  Fruit  &  Pro.  Ex.  v.  New  York  & 
N.  E.  R.  Co.,  4  I.  C.  C.  R.  664,  3  I.  C.  R.  493,  604,  5  L  C.  C.  R.  1. 
Comparison  with  rates  of  other  localities  not  alone  sufficient  to 
show  unreasonableness.  Lincoln  Creamery  v.  Union  Pac.  Ry. 
Co.,  5  I.  C.  C.  R.  156,  3  I.  C.  R.  794.  Salt  requires  a  relatively 
low  rate,  but  should  not  be  moved  at  unremunerative  rates. 
Anthony  Salt  Co.  v.  Mo.  Pac.  R.  Co.,  5  I.  C.  C.  R.  229,  4  I.  C. 
R.  33.  Rates  should  bear  a  fair  relation  to  antecedent  cost  of 
production.  Loud  v.  S.  C.  R.  Co.,  5  I.  C.  C.  R.  529,  4  I.  C.  R. 
205.  A  local  rate  is  prima  facie  excessive  as  part  of  a  through 
rate.  Board  of  Trade  of  Troy  v.  Ala.  M.  R.  Co.,  6  I.  C.  C.  R. 
1.     Order  not  enforced.     Int.  Com.  Com.  v.  Ala  M.  R.  Co.,  69 


§  504.]  Acts  Regulating  Commerce.  373 

Fed.  227,  74  Fed.  715,  21  C.  C.  A.  51,  168  U.  S.  144,  42  L.  Ed. 
414,  18  Sup.  Ct.  45.  Cost  of  service  only  one  element  in  determ- 
ining reasonableness  of  rates.  Schumacher  Milling  Co.  v.  Chi- 
cago, R.  I.  &  Pac.  Ry.  Co.,  6  I.  C.  C.  R.  61,  4  I.  C.  R.  373.  Trans- 
portation charges  on  rival  companies  or  branch  lines  are  to  be 
considered  in  fixing  rates.  IMorrell  v.  U.  Pac.  Ry.  Co.,  6  I.  C. 
C.  R.  121,  4  I.  C.  R.  469,  473.  The  value  of  comparisons  depends 
upon  the  degree  of  similarity  of  circumstances.  Freight  Bureau 
of  Cincinnati  v.  Cincinnati,  N.  0.  &  T.  P.  Ry.  Co.,  6  I.  C.  C.  R. 
195,  4  I.  C.  R.  592.  Order  not  enforced.  Int.  Com.  Com.  v. 
Cincinnati,  N.  0.  &  T.  P.  Ry.  Co.,  76  Fed.  183,  167  U.  S.  479, 
42  L.  Ed.  243,  17  Sup  Ct.  896.  There  is  no  necessary  connection 
between  rates  between  the  same  points  in  opposite  directions. 
Duncan  v.  A.  T.  &  S.  F.  Ry.  Co.,  6  I.  C.  C.  R.  85,  103.  4  I.  C. 
R.  385 ;  MacLoon  v.  Boston  &  M.  R.  Co.,  9  I.  C.  C.  R.  642.  Rates 
on  steel  and  iron  equal  to  the  average  rates  unjust,  different  cost 
of  manufacturing  the  same  product,  no  reason  for  different  rate. 
Colorado  Fuel  &  Iron  Co.  v.  So.  Pac.  Co.,  6  I.  C.  C.  R.  488,  515. 
Order  not  enforced.  101  Fed.  779,  42  C.  C.  A.  12.  For  a  com- 
parison in  rates  to  be  of  any  value  there  must  be  substantial 
similarity.  Evans  v.  U.  Pac.  Co.,  6  I.  C.  C.  R.  520.  Rates  must 
be  relatively  as  well  as  absolutely  just.  Page  v.  Delaware,  L.  & 
W.  R.  Co.,  6  I.  C.  C.  R.  548.  Financial  necessities  of  carrier  en- 
titled to  weight  but  not  controlling.  Jerome  Hill  Cotton  Co.  v. 
]\Io.  Kan.  &  Tex.  R.  Co.,  6  I.  C.  C.  R.  601,  622.  Uniform  blanket 
rate  from  all  stations  held  unreasonable.  Milk  Producers  Pro- 
tective Asso.  V.  Delaware,  L.  &  W.  R.  Co.,  7  I.  C.  C.  R.  92,  164. 
Distance  an  important  element  in  determining  reasonableness  of 
rates.  Freight  Bureau  of  Cincinnati  v.  Cincinnati,  N.  0.  &  T. 
P.  Ry.  Co.,  7  I.  C.  C.  R.  180.  Group  rates  applied  to  cities  con- 
siderable distance  apart  prima  facie  illegal.  Commercial  Club 
of  Omaha  v.  Chicago  &  N.  W.  Ry.  Co.,  7  I.  C.  C.  R.  386.  Inter- 
state rates  are  not  reciuired  to  conform  to  those  fixed  under 
state  laws.  Savannah  Bureau  of  Freight  &  Transportation  v. 
Charleston  &  S.  Ry.  Co.,  7  I.  C.  C.  R.  601.  Principles  of  rate 
making  discussed.  Grain  Shippers  Asso.  of  Northwest  Iowa  v. 
111.  Cent.  R.  Co.,  8  I.  C.  C.  R.  158.  Rate  per  ton  mile  while  val- 
uable is  not  controling.  Gustin  v.  A.  T.  &  S.  F.  R.  Co.,  8  I.  C. 
C.  R.  277.  A  rate  can  seldom  be  considered  "in  and  of  itself." 
Tileston  Milling  Co.  v.  N.  Pac.  Ry.  Co.,  8  I.  C.  C.  R.  346.  361. 
Basing  point  system  of  the  south  disapproved.  Board  of  Trade  of 


374  Acts  Eegulating  Commerce.  [§  50-4. 

Hampton  v.  N.  C.  &  St.  L.  Ry.  Co.,  8  I.  C.  C.  R.  503,  521.  Order 
not  enforced.  Int.  Com.  Com.  v.  N.  C.  &  St.  L.  Ry.  Co.,  120 
Fed.  93-4.  Storage  is  a  service  rendered  and  must  be  reason- 
able. Penn.  Millers  Asso.  v.  Philadelphia  &  R.  Ry.  Co.,  8  I.  C. 
C.  R.  531.  A  rate  long  in  existence  prima  facie  reasonably 
high.  Holmes  &  Co.  v.  So.  Ry.  Co.,  8  I.  C.  C.  R.  561.  Must  con- 
sider all  circumstances  affecting  rates.  i\Iayor  and  Council  of 
Tifton  V.  L.  &  N.  R.  Co.,  9  I.  C.  C.  R.  160,  179.  Reasons  for 
a  general  advance  not  sufficient  to  show  advance  on  particular 
commodity  reasonable.  National  Hay  Asso.  v.  Lake  Shore  etc. 
Ry.  Co.,  9  I.  C.  C.  R.  261,  304,  305.  Order  not  enforced.  Int. 
Com.  Com.  v.  Lake  Shore  etc.  Ry.  Co.,  134  Fed.  942.  Cost  of 
service  may  legally  produce  a  higher  rate  on  less  than  car  load 
than  on  ear  load  shipments.  Business  Men 's  League  of  St.  Louis 
v.  A.  T.  &  S.  F.  Ry.  Co.,  9  I.  C.  C.  R.  318,  358.  Transportation 
is  not  controlled  by  the  law  of  supply  and  demand  and  is  not  to 
sold  to  the  highest  bidder.  Re  Proposed  Advances  in  Freight 
Rate,  9  I.  C.  C.  R.  382.  See  also  discussion  of  principles  at  pp. 
395,  402,  405,  413.  Presumption  that  a  rate  is  reasonably  high 
does  not  apply  to  a  rate  established  bj^  the  commission.  Proctor 
&  Gamble  Co.  v.  Cincinnati,  II.  &  D.  Ry.  Co.,  9  I.  C.  C.  R.  440. 
Order  enforced.  Int.  Com.  Com.  v.  Cincinnati,  H.  &  D.  Ry.  Co., 
146  Fed.  559,  206  U.  S.  142,  51  L.  Ed.  995,  27  Sup.  Ct.  648. 
May  compare  a  rate  with  a  less  rate  for  a  longer  haul.  Mayor 
etc.  of  Wichita  v.  A.  T.  &  S.  F.  Ry.  Co.,  9  I.  C.  C.  R.  534,  552. 
May  not  refuse  car  load  rating  because  consignee  obtained  title 
from  different  consignors.  Buckeye  Buggy  Co.  v.  Cleveland  etc. 
Ry.  Co.,  9  I.  C.  C.  R.  620.  Rates  may  differ  in  reverse  direction. 
MacLoon  v.  Boston  &  M.  R.  Co.,  9  I.  C.  C.  R.  642,  citing  Dimcan 
V.  A.  T.  &  S.  F.  Ry.  Co..  6  I.  C.  C.  R.  85,  4  I.  C.  R.  385.  May 
require  purchase  of  tickets  in  order  to  obtain  a  reduced  fare. 
Cist  V.  Mich.  Cent.  R.  Co.,  10  I.  C.  C.  R.  217.  Rate  according  to 
valuation  of  fruit  unreasonable  and  unjust.  Georgia  Peach 
Growers'  Asso.  v.  Atlantic  C.  L.  R.  Co.,  10  I.  C.  C.  R.  255.  Can 
not  distinguish  in  rates  on  commodities  because  of  method  of 
loading.  Blade  Coal  Co.  v.  B.  &  O.  R.  Co.,  10  I.  C.  C.  R.  226. 
Under  the  circumstances  of  this  case,  there  should  be  no  higher 
rate  on  cattle  and  hogs  than  on  their  products.  Chicago  Live 
Stock  Ex.  V.  Chicago  Great  W.  Ry.  Co.,  10  I.  C.  C.  R.  428. 
Order  not  enforced.  Int.  Com.  Com.  v.  Chicago  Great  W.  Ry. 
Co.,  141  Fed.  1003,  209  U.  S.  108,  52  L.  Ed.  705,  29  Sup.  Ct. 


§  504.]  Acts  Regulating  Commerce.  375 

Effect  of  prosperity  of  shipper,  increased  cost  of  transportation, 
long  continued  rate  and  a  combination  to  advance  rates  dis- 
cussed. Central  Yellow  Pine  Asso.  v.  111.  Cent.  R.  Co.,  10  I.  C. 
C.  R.  505.  Order  enforced.  111.  Cent.  R.  Co.  v.  Int.  Com. 
Com.,  206  U.  S.  441,  51  L.  Ed.  1128,  27  Sup.  Ct.  700.  Tift  v.  So. 
Ry.  Co.,  10  I.  C.  C.  R.  548,  123  Fed.  789,  138  Fed.  753 ;  So.  Ry. 
Co.  V.  Tift,  148  Fed.  1021,  206  U.  S.  428,  51  L.  Ed.  1124,  27  Sup. 
Ct.  709 ;  Tift  V.  So.  Ry.  Co.,  159  Fed.  555.  Effect  of  long  con- 
tinuance of  rate  and  of  financial  condition  of  carrier  considered. 
Re.  Class  and  Commodity  Rates  St.  Louis  to  Texas.  11  I.  C.  C. 
R.  238.  Facts  considered  in  arriving  at  a  conclusion  as  to  rea- 
sonableness of  rates.  Cattle  Raisers'  Asso.  of  Texas  v.  M.  K.  & 
T.  Ry.  Co.,  11  I.  C.  C.  R.  296.  Classification  must  have  refer- 
ence to  general  shipments  and  not  to  a  special  shipper.  Planters 
Compress  Co.  v.  Cleveland  etc.  Ry.  Co.,  11  I.  C.  C.  R.  382.  606. 
Cost  of  service  may  not  be  ignored,  but  there  are  other  matters 
of  equal  importance.  Cannon  v.  ]M.  &  0.  R.  Co.,  11  I.  C.  C.  R. 
537.  Volume  of  traffic  an  argument  for  comparatively  low 
rates.  Farrar  v.  So.  Ry.  Co.,  11  I.  C.  C.  R.  632,  640.  Single 
rates  should  be  considered  as  part  of  the  whole  system.  Hastings 
Malting  Co.  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  11  I.  C.  C.  R.  675. 
Expense  of  delivery  should  not  increase  the  rate  more  than  such 
expense.  Society  of  American  Florists  v.  United  States  Express 
Co.,  12  I.  C.  C.  R.  120.  Existence  of  a  lower  rate  in  remote  past 
no  probative  value.  Enterprise  jMfg.  Co.  v.  Georgia  R.  Co.,  12 
I.  C.  C.  R.  130.  Distance  cannot  be  made  the  sole  factor  in 
rate  making.  Wilhoit  v.  :\I.  K.  &  T.  Ry.  Co.,  12  I.  C.  C.  R.  138. 
Revenue  per  ton  mile  over  other  routes  and  lines  not  conclusive. 
Dallas  Freight  Bureau  v.  Gulf  etc.  Ry.  Co.,  12  I.  C.  C.  R.  223. 
Mere  fact  that  an  advance  was  the  result  of  a  combination  not 
sufficient  to  condemn  it.  China  &  Japan  Trading  Co.  v.  Georgia 
R.  Co.,  12  I.  C.  C.  R.  236;  Mayor  of  Bristol  v.  Virginia  &  S.  W. 
Ry.  Co.,  15  I.  C.  C.  543.  Rate  fixed  by  a  state  commission  not 
binding  on  Interstate  Commerce  Commission.  Hope  Cotton  Oil 
Co.  V.  Texas  &  Pac.  Ry.  Co.,  12  I.  C.  C.  R.  265.  Grain  a  desirable 
traffic  and  entitled  to  low  rate.  Roswell  Commercial  Club 
V.  A.  T.  &  S.  F.  Ry.  Co.,  12  I.  C.  C.  R.  339,  360,  citing  Mayor 
of  Wichita  V.  A.  T.  &  S.  F.  Ry.  Co.,  9  I.  C.  C.  R.  534.  Long 
existence  of  a  rate  not  conclusive  against  the  carrier,  Warren 
Mfg.  Co.  V.  So.  Ry.  Co.,  12  I.  C.  C.  R.  381.  See  Green  Bay  Bus. 
Men's  Asso.  v.  B.  &  0.  R.  Co.,  15  I.  C.  C.  R.  59.    Cotton  waste 


376  Acts  Regui^ating  Commerce.  [§  504. 

should  bear  a  lower  rate  tliau  cotton  goods.  Riverside  Mills  v. 
So.  Ry.  Co.,  12  I.  C.  C.  R.  388.  Expedited  service  charged  for 
must  be  supplied.  American  Fruit  Union  v.  Cincinnati,  N.  0. 
&  T.  P.  Ry.  Co.,  12  I.  C.  C.  R.  411.  Prohibitive  rates  cannot  be 
established.  Poor  v.  Chicago,  B.  &  Q.  Ry.  Co.,  12  I.  C.  C.  R. 
418.  ]\Iere  comparisons  with  other  rates  under  different  con- 
ditions not  sufficient  to  establish  unreasonableness  of  rates. 
Dallas  Freight  Bureau  v.  M.  K.  &  T.  Ry.  Co.,  12  I.  C.  C.  R.  427. 
Rates  unreasonable.  Farmers  Warehouse  Co.  v.  L.  &  N.  R.  Co., 
12  I.  C.  C.  R.  457.  May  in  some  cases  charge  more  where  a  line 
is  composed  of  two  roads  than  when  it  is  composed  of  only  one. 
Loup  Creek  Colliery  Co.  v.  Va.  Ry.  Co.,  12  I.  C.  C.  R.  471.  Can 
make  no  general  ruling  that  through  rates  must  not  exceed  the 
sum  of  the  locals.  Coffey ville  Vitrified  Brick  &  Tile  Co.  v.  St. 
L.  &  S.  F.  R.  Co.,  12  I.  C.  C.  R.  498.  Not  unlawful  to  refuse  to 
carry  at  car  load  rates  mixed  cars  of  mineral  water  and  beer. 
Milwaukee  etc.  Brewing  Co.  v.  Chicago,  SI.  &  St.  P.  Ry.  Co.,  13 
I.  C.  C.  R.  28.  Ordinarily  joint  through  rate  should  be  lower 
than  sum  of  the  locals.  Laning-Harris  Coal  &  Grain  Co.  v.  Mo. 
Pac.  Ry.  Co.,  13  I.  C.  C.  R.  154;  Flaecus  Glass  Co.  v.  Cleveland 
etc.  Ry.  Co.,  14  I.  C.  C.  R.  333.  Bamham  etc.  Dry  Goods  Co. 
V.  Chicago  R.  T.  Co.,  14  I.  C.  C.  R.  299;  Gump  v.  B.  &  0.  R. 
Co.,  14  I.  C.  C.  R.  98 ;  Payne-Gardner  Co.  v.  L.  &  N.  R.  Co.,  13 
I.  C.  C.  R.  638;  Randolph  Lumber  Co.  v.  Seaboard  A.  L.  Ry. 
Co.,  14  I.  C.  C.  R.  338 ;  Sylvester  v.  Penn.  R.  Co.,  14  I.  C.  C.  R. 
573.  A  railroad  constructed  for  a  special  purpose  is  entitled 
to  have  that  fact  considered  in  making  rates.  Am.  Asphalt  Asso. 
V.  Uintah  Ry.  Co.,  13  I.  C.  C.  R.  196.  Capitalization  and  value 
of  property  employed  of  little  value  in  fixing  express  rates. 
Kindel  v.  Adams  Ex.  Co.,  13  I.  C.  C.  R.  475,  485.  Rule  as  to 
released  rates.  Re  Released  Rates.  13  I.  C.  C.  R.  550.  Im- 
proper to  fix  rates  according  to  the  use  of  a  commodity.  Ft. 
Smith  Traffic  Bureau  v.  St.  L.  &  S.  F.  R.  Co.,  13  I.  C.  C.  R. 
651.  Considerations  involved  in  determining  the  reasonableness 
of  rates.  Thompson  Lumber  Co.  v.  111.  Cent.  R.  Co.,  13  I.  C. 
C.  R.  657,  664.  Voluntary  reduction  of  rates  by  a  carrier  does 
not  alone  prove  former  rate  unreasonable.  Ottumwa  Bridge  Co. 
v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  14  I.  C.  C.  R.  121.  Storage 
charges  for  a  reasonable  time  in  which  to  remove  freight  part  of 
the  transportation  and  must  be  reasonable.  New  York  Hay  Ex. 
Asso.  V.  Penn.  R.  Co.,  14  I.  C.  C.  R.  178.    In  exceptional  cases 


§  504.]  Acts  Regulating  Commerce.  377 

the  tliroiigli  rate  may  exceed  the  sum  of  the  locals.  Randolph 
Lumber  Co.  v.  Seaboard  A.  L.  Ry.  Co.,  14  I.  C.  C.  R.  338,  citing 
Minneapolis  etc.  R.  Co.  v.  i\Iinnesota,  186  IJ.  S.  257,  262,  46  L. 
Ed.  1151;  22  Sup.  Ct.  900.  But  see  Lindsay  Bros.  v.  Grand 
Rapids  &  I.  Ry.  Co.,  15  I.  C.  C.  R.  182;  Michigan  Buggy  Co.  v. 
Grand  Rapids  &  I.  Ry.  Co.,  15  I.  C.  C.  R.  297.  State  rates 
though  not  binding  on  the  Interstate  Commission  are  valuable  in 
determining  the  reasonableness  of  interstate  rates.  Corn  Belt 
Meat  Producers  Asso.  v.  Chicago,  B.  &  Q.  Ry.  Co.,  14  I.  C.  C.  R. 
376.  The  question  of  the  reasonableness  of  a  rate  one  of  fact 
and  each  case  must  stand  upon  its  own  record.  Kansas  City 
Hay  Dealers  Asso.  v.  Mo.  Pae.  Ry.  Co.,  14  I.  C.  C.  R.  597;  City 
of  Spokane  v.  N.  Pac.  Ry.  Co.,  15  I.  C.  C.  R.  376.  Effect  of  in- 
creased cost  of  labor  and  materials.  Shippers  and  Receivers  Bu- 
reau of  Newark  v.  New  York,  0.  &  W.  Ry.  Co.,  15  I.  C.  C.  R. 
264.  Statute  declaratory  of  common  law.  Int.  Com.  Cora.  v. 
B.  &  0.  R.  Co.,  43  Fed.  37,  42,  3  I.  C.  R.  192.  Affirmed.  145  U. 
S.  263,  36  L.  Ed.  699,  4  I.  C.  R.  92;  12  Sup.  Ct.  844;  Tift  v.  So. 
Ry.  Co.,  123  Fed.  789,  792,  138  Fed.  753;  So.  Ry.  Co.  v.  Tift, 
148  Fed.  1021,  206  U.  S.  428,  51  L.  Ed.  1124,  27  Sup.  Ct.  709. 
Cannot  recover  for  unreasonable  charges  except  under  statutes, 
as  the  United  States  has  no  common  law.  Swift  v.  Philadelphia 
&  R.  R.  Co.,  58  Fed.  858,  64  Fed.  59.  Disapproved.  Kinnavey 
V.  Terminal  R.  Asso.  of  St.  Louis,  81  Fed.  802,  804;  Western 
Union  Tel.  Co.  v.  Call  Publishing  Co.,  181  U.  S.  92,  45  L.  Ed. 
765,  21  Sup.  Ct.  561.  In  determining  the  question  whether  or 
not  a  rate  is  reasonable  rigorous  theoretical  rules  cannot  be 
adopted — circumstances  that  must  be  considered  stated.  Int. 
Com.  Com.  v.  L.  &  N.  R.  Co.,  73  Fed.  409,  419  to  426.  Cost  of 
service  of  a  particular  movement  cannot  be  found  by  taking  the 
average  cost  of  all  movements  of  same  commodity.  Int.  Com. 
Com.  V.  Lehigh  V.  R.  Co.,  74  Fed.  784.  The  word  ''charges" 
used  in  section  defined.  Detroit,  G.  H.  &  M.  Ry.  v.  Int.  Com. 
Com.,  74  Fed.  803,  21  C.  C.  A.  103,  43  U.  S.  App.  308,  reversing 
57  Fed.  1005,  4  I.  C.  R.  722.  Affirmed.  167  U.  S.  633,  42  L. 
Ed.  306,  17  Sup.  Ct.  986.  Reasons  for  the  act.  Van  Patten  v. 
Chicago,  M.  &  St.  P.  Ry.  Co.,  81  Fed.  545.  Question  whether  or 
not  rates  are  reasonable  a  relative  one  and  may  be  determined 
by  comparison.  Int.  Com.  Com.  v.  East  Tenn.,  V.  &  G.  Ry.  Co., 
85  Fed.  107,  enforcing  order  in  5  T.  C.  C.  R.  546,  2  I.  C.  R. 
798,  3  id.  106,  4  id.  213.    Affirmed.    East  T.  V.  &  G.  Ry.  Co.  v. 


378  Acts  Regulating  Commerce.  [§  505. 

Int.  Com.  Com.,  99  Fed.  52.  Reversed  181  U.  S.  1,  45  L.  Ed. 
719,  21  Sup.  Ct.  516.  ]\Iere  fact  of  a  greater  charge  for  a  shorter 
than  a  longer  haul  does  not  prove  rate  unreasonable.  Int.  Com. 
Com.  V.  Western  &  A.  R.  Co.,  88  Fed.  186 ;  Allen  v.  Oregon  R. 
&  Nav.  Co.,  98  Fed.  16;  Int.  Com.  Com.  v.  Nashville,  C.  &  St. 
L.  Ry.  Co.,  120  Fed.  934.  Refusing  to  enforce  order,  8  I.  C.  C. 
R.  503.  Section  defined  its  purpose  stated  and  a  statement  of 
what  must  be  considered  in  determining  the  reasonableness  of 
a  rate.  Int.  Com.  Com.  v.  Chicago  G.  AV.  Ry.  Co.,  141  Fed.  1003. 
Affirmed.  209  U.  S.  108  52  L.  Ed.  705,  Sup.  Ct.  .  Where 
is  stated  the  probative  effect  of  a  rate  long  in  existence.  Demur- 
rage charges  must  be  reasonable  and  such  charges  governed  by 
section.  IMichie  v.  New  York,  N.  H.  &  H.  R.  Co.,  151  Fed.  694. 
The  question  of  the  reasonableness  of  a  rate  is  a  judicial  one. 
Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota,  134  U.  S.  418,  33  L. 
Ed.  970,  981,  10  Sup.  Ct.  462,  702.  Under  act  prior  to  June  29, 
1906,  commission  could  determine  the  reasonableness  of  a  par- 
ticular rate,  but  could  not  prescribe  rates.  Cincinnati,  N.  0. 
&  T.  P.  Ry.  Co.  V.  Int.  Com.  Com.,  162  U.  S.  184,  40  L.  Ed.  935, 
16  Sup.  Ct.  700.  Int.  Com.  Com.  v.  Cincinnati,  N.  0.  &  T.  P. 
Ry.  Co..  167  U.  S.  479,  511,  42  L.  Ed.  243,  17  Sup.  Ct.  896.  Af- 
firming 76  Fed.  183.  Int.  Com.  Com.  v.  Ala.  M.  Ry.  Co.,  168  U. 
S.  144,  162,  42  L.  Ed.  414,  18  Sup.  Ct.  45.  This  power  now 
specifically  given  by  act  June  29,  1906.  Expenditures  for  perm- 
anent improvements  should  not  be  charged  to  current  expenses. 
111.  Cent.  R.  Co.  v.  Int.  Com.  Com.,  206  U.  S.  441,  51  L.  Ed.  1128, 
27  Sup.  Ct.  700. 

§  505.  Free  service  with  certain  exceptions  prohibited  and 
penalties  prescribed. — Xo  common  carrier  subject  to  the  provi- 
sions of  this  act  shall,  after  January  first,  nineteen  hundred  and 
seven,  directly  or  indirectly,  issue  or  give  any  interstate  free 
ticket,  free  pass,  or  free  transportation  for  passengers,  except 
to  its  employees  and  their  families,  its  officers,  agents,  surgeons, 
physicians,  and  attorneys  at  law ;  to  ministers  of  religion,  travel- 
ing secretaries  of  railroad  Young  ]\Ien's  Christian  Associations, 
inmates  of  hospitals  and  charitable  and  eleemosynary  institu- 
tions, and  persons  exclusively  engaged  in  charitable  and  eleemo- 
synary^ work ;  to  indigent,  destitute  and  homeless  persons,  and  to 
such  persons  when  transported  by  charitable  societies  or  hos- 
pitals, and  the  necessary  agents  employed  in  such  transporta- 
tion ;  to  inmates  of  the  National  Homes  or  State  Homes  for  Dis- 


§  505.]  Acts  Regulating  Commerce.  379 

abled  Volunteer  Soldiers,  and  of  Soldiers'  and  Sailors'  Homes, 
including  those  about  to  enter  and  those  returning  home  after 
discharge,  and  boards  of  managers  of  such  homes ;  to  necessary 
care  takers  of  live  stock,  poultry,  and  fruit ;  to  employees  on 
sleeping  cars,  express  cars,  and  to  linemen  of  telegraph  and  tele- 
phone companies ;  to  railway  mail  service  employees,  postolSce 
inspectors,  customs  inspectors,  and  immigration  inspectors;  to 
newsboys  on  trains,  baggage  agents,  witnesses  attending  any  legal 
investigation  in  which  the  common  carrier  is  interested,  persons 
mjured  in  wrecks  and  physicians  and  nurses  attending  such  per- 
sons: Provided,  That  this  provision  shall  not  be  construed  to 
prohibit  the  interchange  of  passes  for  the  officers,  agents,  and 
employees  of  common  carriers,  and  their  families;  nor  to  pro- 
hibit any  common  carrier  from  carrying. passengers  free  with 
the  object  of  providing  relief  in  cases  of  general  epidemic,  pesti- 
lence, or  other  calamitous  visitation :  Provided  further,  That 
the  term  "employees"  as  used  in  this  paragraph  shall  include 
furloughed,  pensioned,  and  superannuated  employees,  persons 
who  have  become  disabled  or  infirm  in  the  service  of  any  such 
common  carrier,  and  the  remains  of  a  person  killed  in  the  em- 
ploj'ment  of  a  carrier  and  ex-employees  traveling  for  the  purpose 
of  entering  the  service  of  any  such  common  carrier ;  and  the 
term  "families"  as  used  in  this  paragraph  shall  include  the  fam- 
ilies of  those  persons  named  in  this  proviso,  also  the  families  of 
persons  killed  while  in  the  service  of  any  such  common  carrier. 
Any  common  carrier  violating  this  provision  shall  be  deemed 
guilty  of  a  misdemeanor  and  for  each  offense,  on  conviction,  shall 
pay  to  the  United  States  a  penalty  of  not  less  than  one  hundred 
dollars  nor  more  than  two  thousand  dollars,  and  any  person, 
other  than  the  persons  excepted  in  this  provision,  who  uses  any 
such  interstate  free  ticket,  free  pass,  or  free  transportation  shall 
be  subject  to  a  like  penalty.  Jurisdiction  of  offenses  under  this 
provision  shall  be  the  same  as  that  provided  for  offenses  in  an 
act  entitled  "An  act  to  further  regulate  commerce  with  foreign 
nations  and  among  the  states,"  approved  February  nineteenth, 
nineteen  hundred  and  three,  and  any  amendment  thereof. 

Paragraph  four  of  section  one  of  act  added  by  act  of  June 
29,  1906,  and  as  further  amended  by  act  April  13,  1908. 

Paragraph  four  of  section  one  of  the  act  of  June  29,  1906,  read 
as  follows : 

"No   connnon    carrier   subject   to   the   provisions   of   this   act 


380  Acts  Regulating  Commerce.  [§505. 

shall,  after  January  first,  nineteen  hundred  and  seven,  directly 
or  indirectly,  issue  or  give  any  interstate  free  ticket,  free  pass, 
or  free  transportation  for  passengers,  except  to  its  employees 
and  their  families,  its  officers,  agents,  surgeons,  physicians,  and 
attorneys  at  law;  to  ininisters  of  religion,  traveling  secretaries 
of  railroad  Young  Men's  Christian  Associations,  inmates  of  hos- 
pitals and  charitable  and  eleemosynary  institutions,  and  persons 
exclusively  engaged  in  charitable  and  eleemosynary  work;  to  in- 
digent, destitute  and  homeless  persons,  and  to  such  persons  when 
transported  by  charitable  societies  or  hospitals,  and  the  necessary 
agents  employed  in  such  transportation ;  to  inmates  of  the  Na- 
tional Homes  or  State  Homes  for  Disabled  Volunteer  Soldiers, 
and  of  Soldiers'  and  Sailors'  Homes,  including  those  about  to 
enter  and  those  returning  home  after  discharge  and  boards  of 
managers  of  such  homes;  to  necessary  care  takers  of  live  stock, 
poultry  and  fruit;  to  employees  on  sleeping  cars,  express  cars, 
and  to  linemen  of  telegraph  and  telephone  companies;  to  rail- 
way mail  service  employees,  postoffice  inspectors,  customs  in- 
spectors and  immigration  inspectors;  to  newsboys  on  trains, 
baggage  agents;  witnesses  attending  any  legal  investigation  in 
which  the  common  carrier  is  interested,  persons  injured  in 
wrecks  and  physicians  and  nurses  attending  such  persons :  Pro- 
vided, That  this  provision  shall  not  be  construed  to  prohibit  the 
interchange  of  passes  for  the  officers,  agents,  and  employees  of 
common  carriers,  and  their  families ;  nor  to  prohibit  any  common 
carrier  from  carrying  passengers  free  with  the  object  of  provid- 
ing relief  in  cases  of  general  epidemic,  pestilence,  or  other  calam- 
itous visitation.  Any  common  carrier  violating  this  provision 
shall  be  deemed  guilty  of  a  misdemeanor  and  for  each  offense, 
on  conviction,  shall  pay  to  the  United  States  a  penalty  of  not 
less  than  one  hundred  dollars  nor  more  than  two  thousand  dol- 
lars, and  any  person,  other  than  the  persons  excepted  in  this 
provision,  who  uses  any  such  interstate  free  ticket,  free  pass,  or 
free  transportation,  shall  be  subject  to  a  like  penalty.  Juris- 
diction of  offenses  under  this  provision  shall  be  the  same  as  that 
provided  for  offenses  in  an  act  entitled  "An  act  to  further  regu- 
late commerce  with  foreign  nations  and  among  the  states,"  ap- 
proved February  nineteenth,  nineteen  hundred  and  three  and 
any  amendment  thereof. 

The  original  act  did  not  expressly  prohibit  free  transporta- 
tion, and  it  was  only  w^hen  such  transportation  constituted  dis- 


§  506.]  Acts  Kegulating  Commerce.  381 

crimination  and  was  not  in  the  exception  contained  in  section 
22  that  it  was  illegal.  Ex  parte  Koehler,  31  Fed.  315.  Re 
Charge  to  Grand  Jury,  66  Fed.  146. 

Evils  of  free  transportation.  First  Annual  Report  of  Int. 
Com.  Com.,  1  I.  C.  R.  650,  654.  Not  to  be  granted  for  influence. 
Slater  v.  N.  Pac.  R.  Co.,  2  I.  C.  C.  R.  359,  2  I.  C.  R.  243;  Harvey 
V.  L.  &  N.  R.  Co.,  5  I.  C.  C.  R.  153,  3  I.  C.  R.  793.  Re  Carriage 
of  Persons  Free.  5  I.  C.  C..R.  69,  3  I.  C.  R.  717.  Land  and  im- 
migration agents  not  entitled  to  free  transportation.  Re  Com- 
plaint of  Illinois  Central  R.  Co.,  12  I.  C.  C.  R.  7.  Certain  em- 
ployees of  telegraph  companies  may  receive  free  or  reduced 
transportation.  Re  Railroad  Telegraph  Companies.  12  I.  C.  C. 
R.  10.  Newspaper  employees  whose  duties  are  to  assort  papers 
on  special  newspaper  trains  not  entitled  to  free  transportation. 
Re  Free  Transportation  to  Newspaper  Employees.  12  I.  C.  C. 
R.  15.  Not  allowed  to  baggage  express  companies.  Re  Ex- 
change of  Free  Transportation  Between  Railroads  and  Baggage 
Express  Companies.  12  I.  C.  C.  R.  39.  Rule  between  express 
and  railroad  companies.  Re  Contracts  of  Express  Companies 
for  Free  Transportation.  16  I.  C.  C.  R.  246.  See  paragraphs 
62  to  67  of  Tariff  Circular  15-A,  Digest  of  Decisions  by  Peirce, 
722-725.  The  commission  holds  that  ministers  engaged  in  other 
than  pastoral  work  may  legally  be  accorded  special  transporta- 
tion privileges.  Re  Passes  to  Clergjnnen.  15  I.  C.  C.  R.  45.  Act 
does  not  affect  valid  subsisting  contracts  for  free  transportation. 
:\Iottley  V.  L.  &  N.  R.  Co.,  150  Fed.  406.  Kurry  v.  Kansas  & 
C.  P.  Ry.,  58  Kansas  6,  48  Pac.  579.  Express  franks  illegal, 
even  to  officers  and  employees.  United  States  v.  "Wells  Fargo 
Express  Co.,  161  Fed.  606 ;  American  Ex.  Co.  v.  United  States, 
212  U.  S.  522,  53  L.  Ed.  ,  29  Sup.  Ct.  .  Contract  to  fur- 
nish transportation  for  advertising  illegal.  United  States  v. 
Chicago  etc.  Ry.  Co.,  163  Fed.  ]14. 

§  506.  Railroad  companies  prohibited  from  transporting  com- 
modities in  which  they  are  interested  with  certain  exceptions. — 
From  and  after  jMay  first,  nineteen  hundred  and  eight,  it  shall 
be  unlawful  for  any  railroad  company  to  transport  from  any 
state,  territory  or  the  District  of  Columbia,  to  any  other  state, 
territory,  or  the  District  of  Columbia,  or  to  any  foreign  country, 
any  article  or  commodity,  other  tluin  timber  ?ind  tlie  manufac- 
tured products  thereof,  manufnctiifcd.  iniiicd.  ov  produced  by  it, 
or  under  i1s  ;iutliority,  or  wbidi  i1  may  own  in  whole,  or  in  part. 


382  Acts  Kegulating  Commerce.  [§  507. 

or  in  wliieli  it  may  have  any  interest  direct  or  indirect  except 
sucli  articles  or  commodities  as  may  be  necessary  and  intended 
for  its  use  in  the  conduct  of  its  business  as  a  common  carrier. 

Paragraph  five,  section  one,  of  act  as  added  by  act  June  29, 
1906.  Unconstitutional.  United  States  v.  Delaware  &  H,  Co,, 
164  Fed.  215,  22d  Annual  Keport  Interstate  Com.  Com.  (1908) 
17.  Circuit  court  reversed  and  section  held  valid  as  construed 
by  Supreme  Court.  Ignited  States  Vj  Delaware  &  H.  Co,,  213  U, 
S,  366,  53  L.  Ed,  29  Sup.  Ct.  Does  not  apply  to  intrastate  ship- 
ment. Central  Trust  Co.  v,  Pittsburg  etc,  R,  Co.,  101  N,  Y. 
Sup,  837,  114  App.  Div,  907, 

§  507,  Terms  under  which  switch  connections  shall  be  made. — 
Any  common  carrier  subject  to  the  provisions  of  this  act,  upon 
application  of  any  lateral,  branch  line  of  railroad,  or  of  any 
shipper  tendering  interstate  traffic  for  transportation,  shall  con- 
struct, maintain  and  operate  upon  reasonable  terms  a  switch 
connection  with  any  such  lateral,  branch  line  of  railroad,  or 
private  side  track  which  may  be  constructed  to  connect  with 
its  railroad,  where  such  connection  is  reasonably  practicable  and 
can  be  put  in  with  safety  and  will  furnish  sufficient  business  to 
justify  the  construction  and  maintenance  of  the  same;  and  shall 
furnish  cars  for  the  movement  of  such  traffic  to  the  best  of  it^ 
ability  without  discrimination  in  favor  of  or  against  any  such 
shipper.  If  any  common  carrier  shall  fail  to  install  and  operate 
any  such  switch  or  connection  as  aforesaid,  on  application  there- 
for in  writing  by  any  shipper,  such  shipper  may  make  complaint 
to  the  commission,  as  provided  in  section  thirteen  of  this  act, 
and  the  commission  shall  hear  and  investigate  the  same,  and 
shall  determine  as  to  the  safety  and  practicability  thereof  and 
justification  and  reasonable  compensation  therefor  and  the  com- 
mission may  make  an  order,  as  provided  in  section  fifteen  of  this 
act,  directing  the  common  carrier  to  comply  with  the  provisions 
of  this  section  in  accordance  with  such  order,  and  such  order 
shall  be  enforced  as  hereinafter  provided  for  the  enforcement  ot 
all  other  orders  by  the  commission,  other  than  orders  for  the 
payment  of  money. 

Paragraph  six,  section  one,  of  act  as  added  by  act  of  June 
29,  1906. 

Under  paragraph  2,  section  3,  of  this  act  prior  to  the  amend- 
ment of  June  29,  1906,  switch  connecticms  could  be  ordered  when 
the  failure  to  do  so  constituted  discrimination.     Red  Rock  Fuel 


§  508.]  ■     Acts  Regulating  Commerce.  383 

Co.  V.  Bait.  &  0.  R.  Co.,  11  I.  C.  C.  R.  438.  Written  application 
must  be  made  to  give  the  commission  jurisdiction.  Barden  & 
S.  V.  Lehigh  V.  R.  Co.,  12  I.  C.  C.  R.  193.  Connection  ordered. 
McRae  T.  Ry.  v.  So.  Ry.  Co.,  12  I.  C.  C.  R.  270,  545.  Carriers 
should  not  repay  shippers  for  switch  connections  with  transpor- 
tation. Weleetka  Light  &  Water  Co.  v.  Ft.  Smith  &  W.  R.  Co., 
12  I.  C.  C.  R.  503.  Section  discussed  and  construed.  Rahway 
Valley  R.  Co.  v.  Delaware,  L.  &  W.  R.  Co.,  14  I.  C.  C.  R.  191 ; 
:\rcCormick  v.  Chicago,  B.  &  Q.  R.  Co.,  14  I.  C.  C.  R.  611.  State 
court  may  in  absence  of  action  by  commission  compel  switch  con- 
nection. Mo.  Pac.  R.  Co.  V.  Larabee  Flour  Mills  Co.,  211  U.  S. 
612,  53  L.  Ed.  ,  Sup.  Ct.  .  See  also  Wisconsin  etc.  R.  Co. 
V.  Jacobson.  179  U.  S.  287,  45  L.  Ed.  194,  21  Sup.  Ct.  115. 

§  508.  Definition  and  prohibition  of  unjust  discrimination. — 
That  if  any  common  carrier  subject  to  the  provisions  of  this  act 
shall,  directly  or  indirectly,  by  any  special  rate,  rebate,  draw- 
back, or  other  device,  charge,  demand,  collect,  or  receive  from 
any  person  or  persons  a  greater  or  less  compensation  for  any 
service  rendered,  or  to  be  rendered,  in  the  transportation  of  pas- 
sengers or  property,  subject  to  the  provisions  of  this  act,  than  it 
charges,  demands,  collects  or  receives  from  any  other  person  or 
persons  for  doing  for  him  or  them  a  like  and  contemporaneous 
service  in  the  transportation  of  a  like  kind  of  traffic  under  sub- 
stantially similar  circumstances  anci  conditions,  such  common 
carrier  shall  be  deemed  guilty  of  unjust  discrimination,  which 
is  hereby  prohibited  and  declared  to  be  unlawful. 

Section  2  of  the  original  act. 

Modeled  on  §  90  English  Act  1845.  The  Laws  of  Railway,  by 
Browne  &  Theobald,  312,  313;  Halsbury's  Laws  of  England, 
Vol.  4,  p.  74.  Railroad  Commissioners  of  Georgia  v.  Clyde 
Steamship  Co.,  5  I.  C.  C.  R.  324,  4  I.  C.  R.  121,  140.  English 
act  is  as  follows: 

''And  whereas  it  is  expedient  tliat  the  compaii,y  should  he 
enabled  to  vary  the  tolls  upon  the  railway  so  as  to  accommodate 
them  to  the  circumstances  of  the  traffic  but  that  such  power  of 
varying  should  not  be  used  for  the  purpose  of  prejudicing  or 
favoring  particular  parties  or  for  the  purpose  of  collusively  or 
unfairly  creating  a  monopoly,  either  in  the  hands  of  the  com- 
I)any  or  of  particular  pMrtics:  it  sluill  be  lawful,  therefore,  for 
the  company,  subject  to  the  provisions  jind  limitiitions  herein  and 
in  tlie  special  act  eontnined   IVoni  lime  to  time  to  alter  or  vary 


384  Acts  Regulating  Commerce.  [§  508. 

the  tolls  by  the  special  act  authorized  to  be  taken,  either  upon 
the  whole  or  upon  any  particular  portions  of  the  railway,  as  they 
shall  think  fit ;  provided,  that  all  such  tolls  be  at  all  times  charged 
equally  to  all  persons,  and  after  the  same  rate,  whether  per  ton 
per  mile,  or  otherwise,  in  respect  of  all  passengers,  and  of  all 
goods  or  carriages  of  the  same  description,  and  conveyed  or 
propelled  by  a  like  carriage  or  engine,  passing  only  over  the 
same  portion  of  the  line  of  railway  under  the  same  circum- 
stances; and  no  reduction  or  advance  in  any  such  tolls  shall  be 
made  either  directly  or  indirectly  in  favor  of  or  against  any 
particular  company  or  person  traveling  upon  or  using  the  rail- 
way. ' ' 

Not  violated  by  failure  to  allow  same  mileage  to  private  car 
companies  as  to  connecting  carriers.  Burton  Stock  Car  Co.  v. 
C.  B.  &  Q.  R.  Co.,  1  I.  C.  C.  R.  132,  1  I.  C.  R.  329.  Discrimina- 
tion to  allow  large  shippers  a  discount.  Providence  Coal  Co.  v. 
Providence  &  W.  R.  Co.,  1  I.  C.  C.  R.  107,  1  I.  C.  R.  316,  363. 
Mileage  rates  must  be  open  to  all.  Larrison  v.  Chicago  etc.  R, 
Co.,  1  I.  C.  C.  R.  147,  1  I.  C.  R.  369.  Uniform  and  general  regu- 
lations not  illegal  though  more  favorable  to  some  than  to  other 
localities.  Crews  v.  Richmond  &  D.  R.  Co.,  1  I.  C.  C.  R.  401, 
1  I.  C.  R.  703,  712.  Excursion  rates  legal.  Associated  AVhole- 
sale  Grocers  v.  Mo.  Pac.  R.  Co.,  1  I.  C.  C.  R.  156,  1  I.  C.  R.  321, 
393.  Low  rates  settlers'  tickets  must  be  open  to  all  classes, 
^mith  V.  N.  P.  R.  Co.,  1  I.  C.  C.  R.  208,  I.  C.  R.  611 ;  Elvey  v. 
111.  Cent.  R.  Co.,  3  I.  C.  C.  R.  652,  2  I.  C.  R.  804.  Rates  not  un- 
reasonably high  may  be  illegal  because  discriminatory.  Ray- 
mond v.  Chi.,  M.  &  St.  P.  R.  Co.,  1  I.  C.  C.  R.  230,  1  I.  C.  R. 
474,  627.  ''Substantially  similar  circumstances  and  conditions" 
defined.  Business  Men's  Asso.  v.  Chicago,  St.  Paul,  M.  &  0.  R. 
Co..  2  I.  C.  C.  R.  52,  2  I.  C.  R.  41.  Shipments  of  oil  in  barrels 
and  in  tanks  should  be  at  the  same  rate.  Rice  v.  L.  &  N.  R.  Co., 
1  I.  C.  C.  R.  503.  1  I.  C.  R.  354.  376,  443,  722 ;  Schofield  v.  Lake 
etc.  R.  Co.,  1  I.  C.  R.  593,  2  I.  C.  C.  R.  90,  2  I.  C.  R.  67 ;  Rice  v. 
Western  New  York  etc.  R.  Co.,  4  I.  C.  C.  R.  131,  2  I.  C.  R.  298, 
499;  3  id.  162;  Rice  v.  Cincinnati  etc.  R.  Co.,  5  I.  C.  C.  R.  193, 
3  I.  C.  R.  841 ;  Independent  Refiners  Asso.  v.  Penn.  R.  Co.,  6  I. 
C.  C.  R.  52,  4  I.  C.  R.  162,  369.  5  L  C.  C.  R.  415,  2  I.  C.  R.  294, 
296,  4  I.  C.  R.  162.  May  classify  immigrants  for  special  rates. 
Savery  v.  New  York  Cent.  etc.  R.  Co.,  2  I.  C.  C.  R.  338,  1  I.  C. 
R.  695,  2  I.  C.  R.  210.     Free  transportation  to  obtain  the  in- 


§  508.]  Acts  Regulating  Commerce.  385 

Alienee  of  the  holder  in  getting  business  illegal.  Slater  v.  N. 
Pac.  E.  Co.,  2  I.  C.  C.  R.  359,  2  I.  C.  R.  32,  243.  Mines  in  the 
same  general  territory  may  be  grouped  and  take  the  same  rate. 
Rend  v.  Chi.  &  N.  W.  R.  Co.,  1  I.  C.  R.  793,  812,  2  I.  C.  C.  R. 
540,  2  I.  C.  R.  313 ;  Coxe  v.  Lehigh  V.  R.  Co.,  4  I.  C.  C.  R.  535, 

2  I.  C.  R.  195,  229,  3  id.  460.  Rates  must  be  relatively  fair  in 
substance  and  in  fact.  Detroit  Board  of  Trade  v.  Grand  Trunk 
R.  Co.,  2  I.  C.  C.  R.  315,  1  I.  C.  R.  699,  701,  2  I.  C.  R.  199.  A 
carrier's  percentage  of  a  through  rate  may  be  less  than  the  local 
charge  for  the  same  haul.  Chamber  of  Commerce  of  jMilwaukee 
V.  Flint  etc.  R.  Co.,  2  I.  C.  C.  R.  553,  1  I.  C.  R.  774,  792,  2  I. 
C.  R.  393;  Lippman  v.  111.  Cent.  R.  Co.,  2  I.  C.  C.  R.  584,  2  I. 
C.  R.  414;  New  Orleans  Cotton  Exchange  v.  111.  Cent.  R.  Co., 

3  I.  C.  C.  R.  534,  2  I.  C.  R.  460,  777 ;  New  York,  New  Haven  etc. 
R.  Co.  V.  Piatt,  7  I.  C.  C.  R.  323.  Mileage,  excursion  and  com- 
mutation tickets  must  be  offered  impartially  to  all.  Re  Passen- 
ger Tariffs.  2  I.  C.  C.  R.  649,  2  I.  C.  R.  445.  Export  rates  ten 
cents  per  hundred  less  than  the  local  rates  held  illegal.  New 
York  Produce  Exchange  v.  New  York  etc.  R.  Co.,  3  I.  C.  C.  R. 
137,  2  I.  C.  R.  13,  28,  553.  See  Texas  etc.  R.  Co.  v.  Int.  Com. 
Com.  162,  U.  S.  197,  5  I.  C.  R.  405,  40  L.  Ed.  940,  16  Sup.  Ct. 
666.  Through  rates  are  not  required  to  be  made  on  a  mileage 
basis.  McMorran  v.  Grand  Trunk  R.  Co.,  3  I.  C.  C.  R.  252,  2 
I.  C.  R.  14,  19,  604.  A  through  rate  may  be  less  than  the  sum 
of  the  locals.  Chicago,  Rock  Island  &  Pacific  R.  Co.  v.  Chicago 
&  Alton  R.  Co.,  3  I.  C.  C.  R.  450,  2  I.  C.  R.  581,  721.  See  also 
§  504  supra.  Party  rates  less  than  individual  rates  illegal. 
Pittsburg  etc.  R.  Co.  v.  B.  &  0.  R.  Co.,  3  I.  C.  C.  R.  465,  2  I. 
C.  R.  579,  720.  Commission  not  sustained  by  courts.  Int.  Com. 
Com.  V.  B.  &  0.  R.  Co.,  43  Fed.  37,  3  I.  C.  R.  192,  145  U.  S.  263, 
36  L.  Ed.  699,  4  I.  C.  R.  92,  12  Sup.  Ct.  844.  Carriers  may  make 
exclusive  contracts  for  sleeping  cars.  Worcester  Excursion  Co. 
V.  Penn.  R.  Co.,  3  I.  C.  C.  R.  577,  1  I.  C.  R.  811,  2  id.  12,  792. 
]\Iere  quantity  of  shipments  not  alone  sufficient  to  affect  class- 
ification. 4  I.  C.  C.  R.  212,  2  I.  C.  R.  625,  3  id.  257.  Imported 
goods  are  not  entitled  to  any  preference  rate  from  the  port  of 
entry  to  destination  over  domestic  goods.  New  York  Board  of 
Trade  etc.  v.  Penn.  R.  Co.,  4  I.  C.  C.  R.  447,  2  I.  C.  R.  660,  734, 
755,  800.  3  id.  417.  See  Texas  &  Pac.  R.  Co.  v.  Int.  Com.  Com., 
162  U.  S.  197,  40  L.  Ed.  940.  16  Sup.  Ct.  666,  5  I.  C.  R.  405. 
Classification  niav  not  be  used  to  affect  diseriininalion.    Coxe  v. 


386  Acts  Eegulating  Commerce.  [§  508. 

Lehigli  V.  R.  Co.,  4  I.  C.  C.  R.  535,  2  I.  C.  R.  195,  229,  3  id.  460. 
Discrimination  to  transport  free,  officials  and  persons  of  emi- 
nence. Re  Carriage  of  Persons  Free.  3  T.  C.  R.  612,  686,  717; 
Harvey  v.  L.  &  N.  R.  Co.,  5  I.  C.  C.  R.  153,  2  I.  C.  R.  662,  3  id. 
793.  Hypothetical  weights  must  not  be  used  to  discriminate. 
Rice  V.  Cincinnati  etc.  R.  Co.,  5  I.  C.  C.  R.  193,  3  I.  C.  R.  841. 
Section  compared  with  English  act.  Railroad  Com.  of  Ga., 
Trammell  et  al.  v.  Clyde  S.  S.  Co.,  5  I.  C.  C.  R.  324,  4  I.  C.  R. 
120,  140.  Order  not  enforced.  Int.  Com.  Com.  v.  Western  & 
A.  R.  Co.,  88  Fed.  186,  93  Fed.  83,  35  C.  C.  A.  226,  181  U.  S. 
29,  45  L.  Ed.  729,  21  Sup.  Ct.  512.  Lower  rates  on  coal  to  spe- 
cial manufacturers  illegal,  rates  should  not  vary  at  different  sea- 
sons of  the  year.  Re  Alleged  Unlawful  Charges  for  Transporta- 
tion of  Coal  by  L.  &  N.  R.  Co.  5  I.  C.  C.  R.  466,  4  I.  C.  R.  157. 
Illegal  to  discriminate  in  the  privileges  relating  to  delivery  of 
freight.  Phelps  v.  Texas  &  Pac.  R.  Co.,  6  I.  C.  C.  R.  36,  4  I. 
C.  R.  44,  104,  363.  Not  illegal  to  make  a  different  rate  on  freight 
moving  in  opposite  directions  over  same  line.  Business  motive 
of  shipper  cannot  be  considered.  Duncan  v.  A.  T.  &  S.  F.  R. 
Co.,  et  al.,  same  v.  So.  Pac.  Co.  et  al.,  6  I.  C.  C.  R.  85,  3  I.  C.  R. 
256,  4  I.  C.  R.  385;  MacLoon  v.  Boston  &  M.  R.  Co.,  9  I.  C.  C. 
R.  642.  ]\Iay  make  excursion  rates  different  at  different  times. 
Cator  V.  So.  Pac.  Co.,  6  I.  C.  C.  R.  113,  4  I.  C.  R.  397.  A  car- 
rier cannot  legally  use  a  development  company  in  which  it  holds 
all  the  stock  to  purchase  and  ship  commodities  charging  nothing 
therefor.  Re  Alleged  Unlawful  Rates  and  Practices  in  Trans- 
portation of  Grain.  7  I.  C.  C.  R.  33.  Common  ownership  of  a 
carrier  company  and  a  land  company  will  not  prevent  the  land 
company  from  buying  tickets  from  the  carrier  at  full  prices  and 
selling  them  to  guests  of  its  hotel  at  half  price.  Wilson  v.  Rock 
Creek  etc.  Ry.  Co.,  7  1.  C.  C.  R.  83.  Different  rate  by  cwt.  on 
train  loads  and  car  loads  discriminatory.  Paine  v.  Lehigh  Val- 
ley etc.  R.  Co.,  7  I.  C.  C.  R.  218.  Reshipping  at  balance  of  a 
through  rate  illegal.  Re  Alleged  LTnlawful  Rates  and  Practices 
in  the  Transportation  of  Grain  and  Grain  Products.  7  I.  C.  C. 
R.  240.  Re  Rates  and  Practices  of  the  M.  &  0.  R.  Co.  9  I.  C. 
C.  R.  373;  Cannon  Falls  etc.  Co.  v.  Chicago  G.  W.  R.  Co.,  10 
I.  C.  C.  R.  650.  See  question  suggested  but  not  decided.  Com- 
mercial Club  of  Omaha  v.  Chicago  &  R.  I.  R.  Co.,  6  I.  C.  C.  R. 
647;  Duncan  et  al.  v.  N.  C.  &  St.  L.  R.  Co.,  16  I.  C.  C.  R.  590. 
Cannot  divide   rates  with  wagon  carriers.     Carey  v.   Eureka 


§  508.]  Acts  Regulating  Commerce.  387 

Springs  R.  Co.,  7  I.  C.  C.  R.  286.  Terminal  charges  need  not  be 
exacted  on  all  products  alike  nor  at  all  markets.  Cattle  Raisers' 
Asso.  of  Texas  v.  Ft.  Worth  etc.  R.  Co.,  7  I.  C.  C.  R.  513,  555-a. 
Commission's  order  not  enforced.  98  Fed.  173,  103  id.  249,  43 
C.  C.  A.  209,  186  U.  S.  320,  46  L.  Ed.  1182;  22  Sup.  Ct.  824. 
Storage  charges  as  well  as  other  rules  and  regulations  must  not 
he  discriminatory  American  Warehousemen's  Asso.  v.  111.  Cent. 
R.  Co.,  7  I.  C.  C.  R.  556.  Goods  exported  may  move  to  ports  at 
a  less  rate  than  those  consumed  at  the  port.  Kemble  v.  Boston 
etc.  R.  Co.,  8  I.  C.  C.  R.  110.  A  difference  in  the  rates  on  private 
cars  may  exist  when  the  use  thereof  is  different.  Carr  v.  N.  Pac. 
R.  Co.,  9  I.  C.  C.  R.  1.  The  rule  that  as  distance  increases  the 
rate  per  ton  mile  shall  decrease  is  not  required  by  the  statute 
and  is  subject  to  exceptions  and  qualifications.  Hilton  Lumber 
Co.  V.  Wilmington  etc.  R.  Co..  9  I.  C.  C.  R.  17.  To  entitle  a 
shipper  to  a  car  load  rating,  the  shipment  should  be  from  one 
consignor  to  one  consignee  under  one  bill  of  lading,  but  where 
the  consignee  is  the  owner,  it  is  immaterial  whether  his  title  was 
obtained  from  one  or  more  persons.  Whether  a  carrier  can  deny 
car  load  rate  to  forwarding  agent  not  decided.  Buckeye  Buggy 
Co.  V.  Cleveland  etc.  R.  Co.,  9  I.  C.  C.  R.  620;  Bell  Co.  v.  Balti- 
more etc.  R.,  9  I.  C.  C.  R.  632.  "Tap  line"  divisions  or  a  division 
of  a  through  rate  to  a  short  line,  such  line  being  a  common  car- 
rier, is  legal.  Central  Yellow  Pine  Asso.  v.  Vicksburg  S.  &  P. 
R.  Co.,  10  I.  C.  C.  R.  193.    See  also  Re  Transportation  of  Salt, 

10  I.  C.  C.  R.  148.  Ownership  of  the  terminal  or  ''tap  line" 
immaterial,  but  the  division  must  be  reasonable.  Re  Divisions 
of  Joint  Rates  and  Other  Allowances  to  Terminal  Roads.  10  I. 
C.  C.  R.  385.  Where  ''tap  line"  not  a  common  carrier,  allowance 
illegal.  Central  Yellow  Pine  Asso.  v.  111.  Cent.  R.  Co.,  10  I.  C.  C. 
R.  505,  506.  May  make  the  charge  on  a  minimum  of  100  pounds 
at  the  rate  taken  by  the  particular  commodity.  Wrigley  v. 
Cleveland  etc.  R.  Co.,  10  I.  C.  C.  R.  412.  "Under  substantially 
similar  circumstances  and  conditions"  defined  and  held  that 
joint  through  rates  less  than  the  sum  of  the  locals  must  be  open 
to  all.     Capital  City  Gas  Co.  v.  Central  Vermont  etc.  R.  Co., 

11  I.  C.  C.  R.  104.  Circumstances  and  conditions  substantially 
dissimilar.  City  Gas  Co.  v.  B.  &  0.  R.  Co.,  11  I.  C.  C.  R.  371, 
379.  Cotton  packed  by  the  round  l)ale  process  not  entitled  to  a 
different  rate  than  that  packed  in  square  bales.  Planters  Com- 
press Co.  v.  Cleveland  etc.  R.  Co.,  11  I.  C.  C.  R.  382.    A  recon- 


388  Acts  Regulating  Commerce.  [§508. 

signment  rate  may  be  liiglier  than  the  carrier 'sproportion  of  the 
tlirough  rate.  St.  Louis  Hay  &  Grain  Co.  v.  111.  Cent.  R.  Co., 
n  I.  C.  C.  R.  486,  496;  same  v.  M.  &  0.  R.  Co.,  id.  101.  There 
should  be  miiformity  in  the  relation  of  rates  on  commodities 
differently  packed.  Cannon  v.  M.  &  0.  R.  Co.,  11  I.  C.  C.  R. 
537.  Carrier  cannot  charge  more  for  transferring  freight 
brought  from  another  line  than  for  that  originating  on  its  own 
line.  Blackwell  l\Iilling  &  Elevator  Co.  v.  IM.  K.  &  T.  Ry.  Co., 
12  I.  C.  C.  R.  23;  Ponca  City  Milling  Co.  v.  M.  K.  &  T.  Ry.  Co., 
12  I.  C.  C.  R.  26.  Party  rate  tickets  must  be  open  to  all.  Re 
Party  Rate  Tickets,  12  I.  C.  C.  R.  95.  A  car  load  of  freight 
though  owned  by  different  persons  and  known  as  "bulked  ship- 
ments" when  shipped  under  one  bill  of  lading  is  entitled  to  the 
regular  car  load  rate.  California  Commercial  Asso.  v.  Wells 
Fargo  &  Co.,  14  I.  C.  C.  R.  422 ;  Export  Shipping  Co.  v.  Wabash 
R.  Co.,  14  I.  C.  C.  R.  437.  Order  not  enforced.  Delaware,  L.  & 
W.  R.  Co.  V.  Int.  Com.  Com.,  166  Fed.  499.  Section  two  in  effect 
prohibits  free  passes  except  for  the  classes  mentioned  in  section 
twenty-two.  Ex  parte  Koehler,  31  Fed.  315,  12  Sawy.  446.  Re 
Charge  to  Grand  Jury,  66  Fed.  146.  Unless  pass  is  used  no 
crime  is  committed.  United  States  v.  IMathews,  68  Fed.  880. 
Contract  for  rates  based  upon  the  amount  of  shipments  void. 
Burlington,  C.  R.  &  N.  R.  Co.  v.  Northwestern  Fuel  Co.,  31  Fed. 
652.  (Reversed  but  this  question  not  discussed.  Tozer  v. 
United  States,  52  Fed.  917)  John  Hays  &  Co.  v.  Penn.  Co.,  12 
Fed.  309.  Followed  citing  English  cases.  Int.  Com.  Com.  v. 
Tex.  &  Pac.  Ry.  Co.,  52  Fed.  187,  190;  Kinsley  v.  Buffalo,  N. 
Y.  &  P.  R.  Co.,  37  Fed.  181 ;  United  States  v.  Tozer,  39  Fed.  369, 
904.  Only  unjust,  undue  or  unreasonable  discrimination  for- 
bidden. Kentuelvy  &  I.  Bridge  Co.  v.  L.  &  N.  R.  Co.,  37  Fed. 
567,  624.  See  2  I.  C.  C.  R.  162,  2  I.  C.  R.  102.  Not  unlawful 
for  carrier  to  compress  cotton  en  route  when  privilege  open  to 
all.  Cowan  v.  Bond,  39  Fed.  54.  Not  discriminative  to  decline 
to  use  a  particular  live  stock  car.  United  States  v.  Delaware,  L. 
&  W.  R.  Co..  40  Fed.  101.  Party  rate  tickets  at  less  rate  than  for 
a  single  ticket  legal.  Int.  Com.  Com.  v.  B.  &  0.  R.  Co.,  43  Fed. 
37,  46.  Affirmed.  145  U.  S.  263,  36  L.  Ed.  699,  12  Sup.  Ct.  844. 
]\Iay  make  a  difference  in  rates  for  limited  and  unlimited  tickets. 
United  States  v.  Eagan,  47  Fed.  112.  Illegal  to  charge  less  on 
freight  from  Liverpool  than  from  New  York,  New  Orleans,  etc., 
to  San  Francisco.    Int.  Com.  Com.  v.  Tex.  &  Pac.  Ry.  Co.,  52 


§  508.]  Acts  Regulating  Commerce.  389 

Fed.  187.  Affirmed,  57  Fed.  918,  6  C.  C.  A.  653,  20  U.  S.  App. 
1,  4  I.  C.  R.  408.  Reversed,  Tex.  &  Pac.  Ry.  Co.  v.  lut.  Com. 
Com.,  162  U.  S.  197,  40  L.  Ed.  940,  16  Sup.  Ct.  666.  That  cotton 
reached  Mobile  by  boat  is  no  reason  for  charging  more  on  a  ship- 
ment to  New  Orleans  than  was  charged  on  cotton  brought  to 
IMobile  by  other  carriers.  Bigbee  &  Warrior  Rivers  Packet  Co. 
V.  Mobile  &  Ohio  R.  Co.,  60  Fed.  545.  Rebate  to  one  not  a  crime 
imless  refused  to  others.  United  States  v.  Hanley,  71  Fed.  672. 
No  rigid  theoretical  rules  can  be  adopted  to  determine  the  ques- 
tion of  discrimination.  Int.  Com.  Com.  v.  L.  &  N.  R.  Co.,  73 
Fed.  409.  Cannot  charge  full  local  rate  on  freight  delivered  to 
one  carrier,  when  the  proportion  of  the  through  rate  is  charged 
to  another.  Augusta  S.  R.  Co.  v.  Wrightsville  &  T.  R.  Co.,  74 
Fed.  522.  Purpose  of  section  discussed.  Int.  Com.  Com.  v. 
Alabama  M.  Ry.  Co.,  74  Fed.  715,  21  C.  C.  A.  51,  41  U.  S.  App. 
453,  5  I.  C.  R.  685.  Affirming  69  Fed.  227.  Affirmed,  168  U. 
S.  144,  42  L.  Ed.  414,  18  Sup.  Ct.  45.  Cartage  is  separated  from 
the  general  charges  referred  to  in  sections  one,  two,  three  and 
four  of  act.  Detroit  etc.  Ry.  Co.  v.  Int.  Com.  Com.,  74  Fed. 
803,  815,  21  C.  C.  A.  103,  43  U.  S.  App.  308.  Reversing  57  Fed. 
1005,  4  I.  C.  R.  722.  Affirmed,  167  U.  S.  633,  42  L.  Ed.  306,  17 
Sup.  Ct.  986.  What  should  be  stated  in  a  petition  to  recover 
damages  for  discrimination.  Kinnavey  v.  Terminal  R.  Asso. 
of  St.  Louis,  81  Fed.  802.  Section  deals  with  preferences  be- 
tween shippers  and  not  between  localities.  Int.  Cora.  Com.  v. 
Western  &  A.  R.  Co.,  88  Fed.  186.  Affirmed,  93  Fed.  83,  35  C. 
C.  A.  217,  181  U.  S.  29,  45  L.  Ed.  729,  21  Sup.  Ct.  512,  refusing 
to  enforce  order  in  Railroad  Com.  of  Ga.  v.  Clyde  Line  S.  S.  Co., 
5  I.  C.  C.  R.  324,  4  I.  C.  R.  120.  Mere  offer  of  discrimination  not 
an  offense.  Lehigh  Valley  R.  Co.  v.  Rainey,  112  Fed.  487,  re- 
fusing motion  for  new  trial.  See  99  Fed.  596.  Carriers  not 
required  to  give  same  rate  to  forwarding  agents  as  to  owners  of 
car  load  freight.  Lundquist  v.  Grand  Trunk  W.  Ry.  Co.,  121 
Fed.  915;  Delaware,  L.  &  W.  R.  Co.  v.  Int.  Com.  Com.,  166  Fed. 
499.  Contra  under  English  and  Canadian  Act.  Packed  Par- 
eels  Case.  Great  W.  R.  AV.  Co.  v.  Sutton  L.  R.,  4  II.  L.  226, 
I\IacMurchy  &  Denison's  Canadian  Ry.  Law  496.  Cannot  dis- 
criminate in  favor  of  government  in  rates  to  its  soldiers.  United 
States  V.  Chicago  &  N.  W.  Ry.  Co..  127  Fed.  785.  62  C.  C.  A. 
465.  A  carrier  may  in  good  faith  l)uy  a  commodity  and  trans- 
|)()f1   it  ;it  less  than  the  regular  rate.     Int.  Com.  Com.  v.  Chesa- 


390  Acts  Regulating  Commerce.  [§  508. 

peake  &  0.  Ry.  Co.,  128  Fed.  59.  Affirmed  same  ease,  but  this 
proposition  disapproved,  200  U.  S.  361,  50  L.  Ed.  515,  26  Sup. 
Ct.  272.  Classification  must  be  without  discrimination.  Int. 
Com.  Com.  v.  Cincinnati,  II.  &  D.  Ry.  Co.,  146  Fed.  559.  Affirm- 
ed. Cincinnati,  II.  &  I).  Ry.  Co.  v.  Int.  Com.  Com.,  206  U.  S. 
142,  51  L.  Ed.  995,  27  Sup.  Ct.  648.  Reconsignment  rate  is  vio- 
lation of  section.  St.  Louis  Hay  &  Grain  Co.  v.  So.  Ry.  Co.,  149 
Fed.  609.  Affirmed.  So.  Ry.  Co.  v.  St.  Louis  Hay  &  Grain  Co., 
153  Fed.  728.  C.  C.  A.  Reversed,  214  U.  S.  297,  53  L.  Ed. 
29  Sup.  Ct.  "Discrimination"  defined.  United  States  v.  Wells 
Fargo  Ex.  Co.,  161  Fed.  606.  Discrimination  illegal  at  common 
law.  Atchison,  T.  &  S.  F.  R.  Co.  v.  Denver  &  N.  D.  R.  Co.,  110 
U.  S.  667,  28  L.  Ed.  291,  4  Sup.  Ct.  185.  Service  for  local  haul 
not  the  same  as  for  through  haul  covering  the  local  as  well  as 
additional  haul.  Union  Pacific  Ry.  Co.  v.  United  States,  117  U. 
S.  355,  29  L.  Ed.  920,  6  Sup.  Ct.  772.  The  discrimination  must 
be  unjust,  undue  or  unreasonable,  though  a  rate  reasonable 
under  section  one  may  violate  sections  two  and  three.  Int.  Com. 
Com.  V.  Baltimore  &  0.  R.  Co.,  145  U.  S.  263,  36  L.  Ed.  699,  12 
Sup.  Ct.  844,  affirming  43  Fed.  37.  Carriers  not  released  from 
liability  to  innocent  parties  to  a  bill  of  lading  because  a  rebate 
is  allowed.  Merchants  Cotton  Compress  and  Storage  Co.  v.  Ins. 
Co.  of  North  America,  151  U.  S.  368,  38  L.  Ed.  195,  206,  14  Sup. 
Ct.  367.  Ocean  competition  may  make  a  different  circumstance. 
Section  discussed.  Statement  made  that  it  was  modeled  on  sec- 
tion 90,  English  Act  of  1845,  and  English  cases  cited.  Tex.  & 
Pac.  R.  Co.  V.  Int.  Com.  Com.,  162  U.  S.  197,  213,  219,  222,  224, 
225,  40  L.  Ed.  940,  945,  947,  948,  949,  16  Sup.  Ct.  666.  Revers- 
ing 57  Fed.  948,  6  C.  C.  A.  653,  20  U.  S.  App.  1,  4  I.  C.  R.  408. 
Prior  to  the  act  to  regulate  commerce  recovery  could  not  be  had 
for  discrimination  unless  the  charge  was  unreasonable.  Par- 
sons V.  Chicago  &  N.  W.  R.  Co.,  157  U.  S.  447,  42  L.  Ed.  231, 
17  Sup.  Ct.  887.  Allowance  of  cartage  to  one  and  not  to  all 
violates  section.  Wight  v.  United  States,  167  U.  S.  512,  42  L. 
Ed.  258,  17  Sup.  Ct.  822.  ''Under  substantially  similar  circum- 
stances and  conditions"  refers  to  matter  of  carriage  and  does  not 
include  competition,  id.  While  this  is  true  of  section  two,  it 
is  not  true  of  section  four.  Int.  Com.  Com.  v.  Alabama  M.  Ry. 
Co.,  168  U.  S.  144,  42  L.  Ed.  414,  18  Sup.  Ct.  45;  East  Tenn., 
Va.  &  Ga.  Ry.  Co.  v.  Int.  Com.  Com.,  181  U.  S.  1,  45  L.  Ed.  719, 
21  Sup.  Ct.  516;  Int.  Com.  Com.  v.  Clyde  S.  S.  Co.,  181  U.  S. 


§  509.]  Acts  Eegulating  Commerce.  391 

29,  45  L.  Ed.  729,  21  Sup.  Ct.  512.  See  as  to  effect  of  free  cart- 
age on  section  four.  Int.  Com.  Com.  v.  Detroit  etc.  Ry.  Co., 
167  U.  S.  633,  42  L.  Ed.  306,  11  Sup.  Ct.  986.  Carrier  cannot 
escape  from  provisions  of  section  by  electing  to  be  a  dealer  in 
commodities  shipped.  New  York,  N.  H.  &  H.  R.  Co.  v.  Int.  Com. 
Com.,  200  U.  S.  361,  391,  392,  50  L.  Ed.  515,  521,  26  Sup.  Ct. 
272.  Commission  has  power  to  order  carriers  to  cease  from  vio- 
lating act  by  discriminating  between  persons  or  localities.  Cin- 
cinnati, H.  &  D.  Ry.  Co.  V.  Int.  Com.  Com.,  206  U.  S.  142,  51 
L.  Ed.  995,  27  Sup.  Ct.  648. 

§  509.  Undue  and  unreasonable  preference  prohibited. — That 
it  shall  be  unlawful  for  any  common  carrier  subject  to  the  provi- 
sions of  this  act  to  make  or  give  any  undue  or  unreasonable  pref- 
erence or  advantage  to  any  particular  person,  company,  firm, 
corporation,  or  locality,  or  any  particular  description  of  traffic, 
in  any  respect  whatsoever,  or  to  subject  any  particular  person, 
company,  firm,  corporation,  or  locality,  or  any  particular  de- 
scription of  traffic,  to  any  undue  or  unreasonable  prejudice  or 
disadvantage  in  any  respect  whatsoever. 

First  paragraph  of  section  3  of  the  original  act. 

This  provision  substantially  follows  language  in  section  two 
of  English  Traffic  Act  of  1854,  and  section  eleven  of  the  act  of 
1873.    The  English  act  provides : 

Every  railway  company,  canal  company,  and  railway  and 
canal  company,  shall,  according  to  their  respective  powers,  af- 
ford all  reasonable  facilities  for  the  receiving  and  forwarding 
and  delivering  of  traffic  upon  and  from  the  several  railways  and 
canals  belonging  to  or  worked  by  such  companies  respectively, 
and  for  the  return  of  carriages,  trucks,  boats,  and  other  vehicles; 
and  no  such  company  shall  make  or  give  any  undue  or  unrea- 
sonable preference  or  advantage  to  or  in  favour  of  any  particular 
person  or  company,  or  any  particular  description  of  traffic,  in 
any  respect  whatsoever,  nor  shall  any  such  company  subject  any 
particular  person  or  company,  or  any  particular  description  of 
traffic,  to  any  undue  or  unreasonable  prejudice  or  disadvantage 
in  any  respect  whatsoever;  and  every  railway  company  and  canal 
company,  and  railway  and  canal  company  having  or  working 
railways  or  canals  which  form  part  of  a  continuous  line  of  rail- 
way or  canal  or  railway  and  canal  communication,  or  which  have 
the  terminus,  statidii.  or-  wharf  of  the  one  near  the  ternn'nus, 
station,  (jr  wharf  of  the  other,  shall  afford  all  due  and  reasonable 


892  Acts  Regulating  Commerce.  [§509. 

facilities  for  receiving  and  forwarding  all  the  traffic  arriving  by- 
one  of  such  railways  or  canals  by  the  other,  without  any  imrea- 
sonable  delay,  and  without  any  such  preference  or  advantage, 
or  prejudice  or  disadvantage,  as  aforesaid,  and  so  that  no  ob- 
struction may  be  offered  to  the  public  desirous  of  using  such 
railways  or  canals  or  railways  and  canals  as  a  continuous  line 
of  communication,  and  so  that  all  reasonable  accommodation 
may,  by  means  of  the  railways  and  canals  of  the  several  com- 
panies, be  at  all  times  afforded  to  the  public  in  that  behalf. 

Browne  &  Theobald's  Railway  Laws,  405,  Ilalsbury's  Laws  of 
England,  Vol.  4,  p.  76. 

Religious  teachers  in  view  of  section  2  of  act  may  receive  spe- 
cial reduced  rates.  Re  Religious  Teachers.  1  I.  C.  C.  R.  21. 
Discount  may  not  be  given  large  shippers.  Providence  Coal  Co. 
V.  Providence  etc.  R.  Co.,  1  I.  C.  C.  R.  ]07,  1  I.  C.  R.  316.  363. 
A  carrier  operating  parallel  lines  should  furnish  corresponding 
advantages  to  each  line.  Boards  of  Trade  Union  v.  Chicago  etc. 
R.  Co.,  1  I.  C.  C.  R.  215,  1  I.  C.  R.  608.  Undue  preference  il- 
legal although  not  wholly  voluntary.  Raymond  v.  Chicago,  M. 
&  St.  P.  R.  Co.,  1  I.  C.  C.  R.  230,  1  I.  C.  R.  627.  Unreasonable 
preference  illegal  whether  accomplished  by  device  or  directly. 
•Scofield  V.  Lake  etc.  R.  Co.,  2  I.  C.  C.  R.  90,  1  I.  C.  R.  593,  2  id. 
67.  Subscriptions  to  build  a  railroad  no  legal  reason  to  affect 
rates  favorably  to  subscribing  territory.  Lincoln  Board  of  Trade 
V.  U.  P.  R.  Co.,  2  I.  C.  C.  R.  147,  2  I.  C.  R.  95.  Uniform  rate  on 
milk  from  all  stations  within  two  hundred  miles  of  New  York 
not  unjust  discrimination.  Howell  v.  New  York  etc.  R.  Co.,  2 
I.  C.  C.  R.  272,  2  I.  C.  R.  162.  Rule  discussed  for  making  rates 
between  communities  in  accord  with  section.  Detroit  Board  of 
Trade  v.  Grand  Trunk  Ry.,  2  I.  C.  C.  R.  315,  2  I.  C.  R.  199. 
Rates  should  be  known  and  announced  publicly  as  to  all  places 
and  persons.  Re  Tariffs  Transcontinental  Lines,  2  I.  C.  C.  R. 
324,  2  1.  C.  R.  203.  Rate  per  ton  mile  may  vary  with  distance. 
New  Orleans  Cotton  Exchange  v.  Cincinnati  etc.  R.  Co.,  2  I.  C. 
C.  R.  375,  2  I.  C.  R.  289 ;  same  v.  111.  Cent.  R.  Co.,  3  I.  C.  C.  R. 
534,  2  L  C.  R.  777.  Circumstances  may  be  so  different  as  to 
justify  deviations  from  rule  of  equal  mileage  on  different 
branches  of  the  same  road,  but  burden  to  show  such  circum- 
stances on  the  carrier.  Logan  v.  Chicago  &  N.  W.  R.  Co.,  2  I. 
C.  C.  R.  604;  2  I.  C.  R.  431.  Through  rates  not  required  to  be 
made  on  a  mileage  basis.    MclMorran  v.  Grand  Trunk  R.  Co.,  3 


§  509.]  Acts  Regulating  Commerce.  393 

I.  C.  C.  R.  252 ;  2  I.  C.  R.  604.  Separation  of  races  legal  but 
accommodations  must  be  equal.  Heard  v.  Ga.  R.  Co.,  3  I.  C.  C. 
R.  111.  2  I.  C.  R.  508;  see  same  case.  1  I.  C.  C.  R.  428.  1  I.  C. 
R.  719;  Cozartt  v.  So.  Ry.  Co..  16  I.  C.  C.  R.  226;  Gaines  v. 
Seaboard  A.  L.  Ry.,  16  I.  C.  C.  R.  471.  May  make  a  reasonable 
rate  between  C.  L.  and  L.  C.  L.  shipments.  Car  load  ratings 
should  be  ecpial,  whether  one  or  more  consignors  or  consignees. 
Thurber  v.  New  York  etc.  R.  Co.,  3  I.  C.  C.  R.  473,  2  I.  C.  R. 
742.  Special  tariffs  for  emigrants  only  illegal.  Elvey  v.  111. 
Cent.  R.  Co.,  3  I.  C.  C.  R.  652,  2  I.  c'  R.  804.  Should  be  no 
distinction  between  the  rates  and  allowances  on  oil  shipped  in 
tank  cars  and  in  barrels.  Rice  v.  Western  N.  Y.  etc.  R.  Co.,  4 
I.  C.  C.  R.  131,  3  I.  C.  R.  162;  see  also  5  I.  C.  C.  R.  193,  3  I. 
C.  R.  841,  6  I.  C.  C.  R.  455.  Discrimination  is  not  legalized  be- 
cause large  investments  have  been  made  inider  it.  Board  of 
Trade  of  Chicago  v.  Chicago  &  Alton  R.  Co.,  4  I.  C.  C.  R.  158, 

3  I.  C.  R.  233.  Mere  quantity,  other  than  a  recognized  unit  of 
carriage,  no  reason  for  difference  in  rate.    Harvard  v.  Penn.  Co., 

4  I.  C.  C.  R.  212.  3  I.  C.  R.  257.  A  differential  between  wheat 
and  wheat  flour  long  maintained  may  be  continued.  Kauffman 
V.  Mo.  Pac.  R.  Co.,  4  I.  C.  C.  R.  417,  3  I.  C.  R.  400.  Rates  should 
be  relatively  just  both  as  to  localities  and  different  kinds  of 
traffic.  Squire  v.  Mich  Cent.  R.  Co.,  4  I.  C.  C.  R.  611,  3  I.  C. 
R.  515.  Water  competition  when  freight  can  move  over  the 
longer  distance  point  justifies  a  less  rate  for  the  longer  than  the 
shorter  haul.  James  &  Mayer  Buggy  Co.  v.  Cincinnati  etc.  R. 
Co.,  4  I.  C.  C.  R.  744,  3  I.  C.  R.  682.  Order  not  enforced.  Int. 
Com.  Co.  V.  Cincinnati  etc.  R.  Co.,  56  Fed.  925.  Circuit  court 
reversed.  13  U.  S.  App.  720,  162  U.  S.  184,  40  L.  Ed.  935,  16 
Sup.  Ct.  700.  Section  compared  with  English  act.  Railroad 
Com.  of  Ga.  Trammel  et  al.  v.  Clyde  S.  S.  Co.,  5  I.  C.  C.  R.  324, 
4  I.  C.  R.  120,  140.  Order  not  enforced.  Int.  Com.  Com.  v. 
Western  &  A.  R.  Co.,  88  Fed.  186,  93  Fed.  83,  35  C.  C.  A.  226, 
181  U.  S.  29,  45  L.  Ed.  729,  21  Sup.  Ct.  512.  Rates  on  similar 
commodities  should  not  greatly  differ.  ^Michigan  Box  Co.  v. 
Flint  etc.  R.  Co.,  6  I.  C.  C.  R.  335.  "Unreasonable,"  "unjust" 
and  similar  terms  used  in  section  defined.  Daniels  v.  Chicago 
etc.  R.  Co.,  6  I.  C.  C.  R.  458.  Excess  of  man'ufactnring  cost  at 
one  point  over  another  should  not  affect  the  relativ(!  rates.  Colo- 
rado Fuel  &  Iron  Co.  v.  So.  Pac.  Co.,  6  I.  C.  C.  R.  488.  Order 
not  enforced.     So.  Pac.  Co.  v.  Fuel  Co.,  101  Fed.  779,  42  C.  C. 


39-4  Acts  Regulating  CoRniERCE.  [§509. 

A.  12.    Terms  used  in  section  discussed  and  held  to  imply  com- 
parison.   Page  V.  Delaware  etc.  R.  Co.,  6  I.  C.  C.  R.  548 ;  see  6 
I.  C.  C.  R.'  148,  4  I.  C.  R.  425;  Int.  Com.  Com.  v.  Delaware  etc. 
R.  Co.,  64  Fed.  723.    Rates  from  Texas  common  points  to  Wich- 
ita higher  than  to  Kansas  City  illegal.     Johnston-Larimer  Dry 
Goods  Co.  V.  A.  T.  &  S.  F.  R.  Co.,  6  I.  C.  C.  R.  568;  see  also  10 
I.  C.  C.  R.  460,  12  I.  C.  C.  R.  47,  188.     Should  not  disregard 
distances  and  natural  advantages.     Commercial  Club  of  Omaha 
V.  Chicago  &  R.  I.  R.  Co.,  6  I.  C.  C.  R.  647.     Blanket  rate  to 
New  York  on  milk  from  towns  of  different  distances  held  viola- 
tive of  this  section  though  group  rates  based  on  groups  reason- 
ably arranged  legal.     IMilk  Producers  Protective  Asso.  v.  Dela- 
ware etc.  R.  Co.,  7  I.  C.  C.  R.  92,  164  and  cases  cited.    "A  city 
is  entitled  to  the  benefit  of  its  location."     Freight  Bureau  of 
Cincinnati  v.  C.  N.  0.  &  T.  P.  R.  Co.,  7  I.  C.  C.  R.  180,  189. 
The  law  permits  railroads  to  meet,  not   to   extinguish,  water 
competition.    Brewer  v.  L.  &  N.  R.  Co.,  7  I.  C.  C.  R.  224.    Order 
not  enforced.    84  Fed.  258.    Undue  preference  means  preference 
that  is  appreciable  and  certain.    Contract  for  rates  not  enforced. 
Commercial  Club  of  Omaha  v.  Chicago  &  N.  W.  R.  Co.,  7  I.  C. 
C.  R.  386;  see  also  Rheinlander  Paper  Co.  v.  N.  Pae.  R.  Co.,  13 
I.  C.  C.  R.  633.    Higher  rates  from  New  Orleans  to  La  Grange 
than  to  points  similar  in  size  and  beyond  La  Grange  illegal. 
Callaway  v.  L.  &  N.  R.  Co.,  7  I.  C.  C.  R.  431.    Order  enforced  by 
Circuit  Court,  102  Fed.  709.    Reversed  in  Supreme  Court.    Int. 
Com.  Com.  v.  L.  &  N.  R.  Co.  (LaGrange  Case)   190  U.  S.  273, 
42  L.   Ed.   1047,  23   Sup.  -Ct.   687.     Differentials  held  illegal. 
Chamber  of  Commerce  of  Milwaukee  v.  Chicago,  M.  &  St.  P.  R. 
Co.,  7  I.  C.  C.  R.  481,  511.     Terminal  charges  constituting  a 
violation  of  section.    Cattle  Raisers'  Asso.  v.  Ft.  AV.  &  D.  City  R. 
Co.,  7  I.  C.  C.  R.  555-a.     Order  not  enforced.    98  Fed.  173,  103 
Fed.  249,  43  C.  C.  A.  209,  186  U.  S.  320,  46  L.  Ed.  1182,  22  Sup. 
Ct.  824.    Differentials  to  Baltimore  and  Philadelphia  under  New 
York  legal.    New  York  Produce  Ex.  v.  B.  &  0.  R.  Co.,  7  I.  C.  C. 
R.  612,  658,  661,  667.     Whether  or  not  competition  is  such  as 
to  relieve  carriers  from  restraints  of  section  a  question  of  fact. 
Phillips.  Bailey  &  Co.  v.  L.  &  N.  R.  Co.,  8  I.  C.  C.  R.  93.    Dis- 
crimination held  to  violate  section.    Re  Alleged  Violations  by  St. 
L.  &  S.  F.  Ry.  Co.    8  I.  C.  C.  R.  290.    May  be  a  differential  be- 
tween corn  and  wheat  and  their  products  but  must  be  reasonable. 
Board  of  R.  R.  Comr's.  of  Kansas  v.  A.  T.  &  S.  F.  Ry.  Co.,  8  I. 


§  509.]  Acts  Regulating  Commerce.  395 

C.  C.  R.  304;  Mayor  etc.  of  Wichita  v.  :\ro.  Pac.  R.  Co.,  10  I. 
C.  C.  R.  35,  and  cases  there  cited.  A  station  in  Chicago,  a 
shorter  distance  point  should  not  have  a  higher  rate  than  the 
union  depot  in  Chicago.  Chicago  Fire  Proof  etc.  Co.  v.  Chicago 
&  N.  W.  R.  Co.,  8  I.  C.  C.  R.  316.  Carriers  have  no  right  to 
create  new  markets  at  expense  of  old  ones.  Savannah  Bureau 
etc.  V.  L.  &  N.  R.  Co.,  8  I.  C.  C.  R.  377.  Order  enforced.  Int. 
Com.  Com.  v.  L.  &  N.  R.  Co.,  118  Fed.  613.  Relative  rates  be- 
tween Danville  and  Lynchburg  illegal.    Danville  v.  So.  Ry,  Co., 

8  I.  C.  C.  R.  409.  Order  not  enforced.  Int.  Com.  Com.  v.  So. 
Ry.  Co.,  117  Fed.  741,  122  Fed.  800,  60  C.  C.  A.  540.  Rates 
must  not  destroy  competition  between  cities.  Board  of  Trade 
of  Hampton  v.  N.  C.  &  St.  L.  R.  Co.,  8  I.  C.  C.  R.  503.  Order  not 
enforced.  Int.  Com.  Com.  v.  N.  C.  &  St.  L.  R.  Co.,  120  Fed.  934. 
Unjust  discrimination  illegal  although  no  direct  injury.  Kindel 
V.  A.  T.  &  S.  F.  Ry.  Co.,  8  I.  C.  C.  R.  608,  9  I.  C.  C.  R.  606. 
Remedy  for  unlawful  rates  inadequate.  McGrew  v.  M.  P.  R. 
Co.,  8  I.  C.  C.  R.  630.  Rates  violative  of  section.  Hilton  Lum- 
ber Co.  V.  "Wilmington  etc.  R.  Co.,  9  I.  C.  C.  R.  17.  Carriers  may 
recognize  natural,  but  ordinarily  must  not  create  artificial  ad- 
vantages. Holdzkom  v.  Mich.  Cent.  Ry.  Co.,  9  I.  C.  C.  R.  42,  54. 
Preference  to  be  illegal  must  be  the  result  of  action  of  carriers. 
Wilmington  Tariff  Asso.  v.  Cincinnati,  Portsmouth  etc.  R.  Co., 

9  I.  C.  C.  R.  118,  157.  Order  not  enforced.  124  Fed.  624.  Il- 
legal discrimination  in  failure  to  publish  through  rates.  John- 
son v.  Chicago,  Saint  Paul  etc.  R.  Co.,  9  I.  C.  C.  R.  221.  Milling 
in  transit  a  privilege  that  the  carriers  cannot  be  forced  to  give. 
Diamond  Mills  Co.  v.  Boston  &  M.  R.  Co.,  9  I.  C.  C.  R.  311. 
Differentials  between  C.  L.  and  L.  C.  L.  must  be  reasonable. 
Business  Men's  League  of  St.  Louis  v.  A.  T.  &  S.  F.  R.  Co.,  9  I. 
C.  C.  R.  318,  359.  Facts  constituting  discrimination.  Mayor 
etc.  of  Wichita  v.  A.  T.  &  S.  F.  R.  Co.,  9  I.  C.  C.  R.  534 ;  same 
V.  Chicago  &  R.  I.  R.  Co.,  9  I.  C.  C.  R.  569.  Rates  unduly  dis- 
criminatory. Marten  v.  L.  &  N.  R.  Co.,  9  I.  C.  C.  R.  581 ;  Kindel 
V.  A.  T.  &  S.  F.  R.  Co.,  9  I.  C.  C.  R.  606.  Higher  charge  on  coal 
because  of  method  of  loading  illegal.  Glade  Coal  Co.  v.  B.  &  0. 
R.  Co.,  10  I.  C.  C.  R.  226.  Circumstances  justifying  different 
charges.    Aberdeen  Group  Commercial  Asso.  v.  M.  &  0.  R.  Co., 

10  I.  C.  C.  R.  289.  Should  not  make  a  different  rate  per  him- 
dred  on  cattle  in  car  lots  and  in  ten  car  lots.  New  Orleans  Live 
Stock  Ex.  V.  T.  &  P.  Ry.  Co.  10  I.  C.  C.  R.  327.     Difference  in 


396  Acts  Regulating  Commerce.  [§•'300. 

rate  greater  than  competitive  conditions  justified.  Gardner  v. 
So.  Ry.  Co.,  10  I.  C.  C.  R.  342.  No  reason  to  charge  more  on  live 
stock  than  on  live  stock  prodncts.  Chicago  Live  Stock  Ex.  v. 
Chicago  Great  W.  R.  Co.,  10  I.  C.  C.  R.  428.  Circuit  court 
contra.  Int  Com.  Com.  v.  Chicago  Great  W.  R.  Co.,  141  Fed. 
1003,  209  U.  S.  108,  52  L.  Ed.  705,  28  Sup.  Ct.  Differential  be- 
tween two  cities  should  not  he  affected  by  point  of  origin. 
Mershon  v.  Cent.  R.  R.  of  N.  J.,  10  I.  C.  C.  R.  456.  Higher  rate 
to  "Wichita  than  the  longer  distance  to  Kansas  City  justified,  ])ut 
differential  too  great.  Lehman-Higginson  Grocery  Co.  v.  A. 
T.  &  S.  F.  R.  Co.,  10  I.  C.  C.  R.  460.  Should  be  no  higher  rates 
on  shingles  than  lumber.  Duluth  Shingle  Co.  v.  Duluth  etc.  R. 
Co.,  10  I.  C.  C.  R.  489.  Refusal  to  grant  divisions  to  "tap 
lines"  east  of  the  Mississippi  River  not  illegal  because  granted 
by  other  carriers  west  of  the  river  Central  Yellow  Pine  Asso. 
v.  111.  Cent.  R.  Co.,  10  I.  C.  C.  R.  505.  Order  enforced.  111. 
Cent.  R.  Co.  v.  Int.  Com.  Com.,  206  U.  S.  441,  51  L.  Ed.  1128, 
27  Sup.  Ct.  700.  Combination  rate  should  not  be  less  than  the 
straight  rate.  Cannon  Falls  etc.  Elevator  Co.  v.  Chicago  Great 
W.  R.  Co.,  10  I.  C.  C.  R.  650.  Reasonable  differentials  between 
Baltimore,  Philadelphia  and  New  York.  Re  Differential  Freight 
Rates  to  and  from  North  Atlantic  Ports.  11  I.  C.  C.  R.  13. 
Carrier  not  liable  for  discrimination  caused  by  state  commission. 
Re  Freight  Rates  Between  Memphis  and  Points  in  Arkansas. 
11  I.  C.  C.  R.  180.  Differential  between  corn  and  corn  products 
fixed.  Re  Rates  on  Corn  and  Corn  Products.  11  I.  C.  C.  R. 
212,  220,  227.  Unjust  discrimination.  City  Gas  Co.  of  Norfolk 
V.  B.  &  0.  R.  Co.,  11  I.  C.  C.  R.  371.  Rates  not  imduly  prejudi- 
cial. Griffin  Grocery  Co.  v.  So.  Ry.  Co.,  11  I.  C.  C.  R.  522. 
Flour  in  barrels  and  in  sacks  should  have  a  uniformly  just  rate 
relation.  Cannon  v.  M.  &  0.  R.  Co.,  11  I.  C.  C.  R.  537.  Junk 
should  not  be  rated  as  high  as  machinery.  National  Machinery 
&  Wrecking  Co.  v.  Pittsburg  etc.  R.  Co.,  11  I.  C.  C.  R.  581. 
Different  rates  in  reverse  directions  not  necessarily  unreason- 
able. Weil  V.  Penn.  R.  Co.,  11  I.  C.  C.  R.  627.  Duncan  v.  A. 
T.  &  S.  F.  R.  Co..  6  I.  C.  C.  R.  85,  4  I.  C.  R.  385;  MacLoon  v. 
Boston  &  M.  R.  Co.,  9  I.  C.  C.  R.  642;  Hewins  v.  New  York,  N. 
H.  &  H.  R.  Co.,  10  I.  C.  C.  R.  221;  Phillips  v.  Grand  Trunk  W. 
R.  Co.,  11  I.  C.  C.  R.  659 ;  see  also  decision  by  Judge  Speer,  Int. 
Com.  Com.  v.  L.  &  N.  R.  Co.,  118  Fed.  613,  623.  Adjustment 
of  rates  held  unreasonable.    Davenport  v.  So.  Ry.  Co.,  11  I.  C. 


§  509.]  Acts  Eegulating  Commerce.  397 

C.  R.  650.  Difference  in  cost  of  manufacture  no  ground  in  itself 
for  adjustment  of  rates.     Phillips  v.  Grand  Trunk  AV.  Ry.  Co., 

11  I.  C.  C.  R.  659.  Not  undue  discrimination.  Village  of  Good- 
hue V.  Chicago  Great  W.  Ry.  Co.,  11  I.  C.  C.  R.  683,  687.  A  dif- 
ferent charge  by  a  carrier  for  transporting  freight  originating 
on  its  own  line  than  for  that  received  from  connecting  lines  il- 
legal.    Blackwell  I\Iilling  &  Elevator  Co.  v.  M.  K.  &  T.  R.  Co., 

12  I.  C.  C.  R.  23 ;  Ponca  City  ]\Iilling  Co.  v.  M.  K.  &  T.  R.  Co., 
id.  26.  Differential  betv^een  "Wichita  and  Kansas  City  from  Gal- 
veston too  great.  Johnston-Larimer  Dry  Goods  Co.  v.  A.  T.  & 
S.  F.  R.  Co.,  12  I.  C.  C.  11.  47,  188 ;  see  similar  cases  id,  51,  58. 
Carriers  cannot  arbitrarily  fix  market  competition.  Texas  Ce- 
ment Plaster  Co.  v.  St.  L.  &  S.  F.  R.  Co.,  12  I.  C.  C.  R.  68.  May 
make  cheaper  rates  to  Pacific  Coast  from  New  England  mills 
than  from  southeastern  mills.  Enterprise  Mfg.  Co.  v.  Ga.  R.  Co., 
12  I.  C.  C.  R.  130,  451 ;  China  &  Japan  Trading  Co.  v.  Georgia 
R.  Co.,  12  I.  C.  C.  R.  236.  Rate  discrimination.  Tomlin-Harris 
Machine  Co.  v.  L.  &  N.  R.  Co.,  12  I.  C.  C.  R.  133;  Southern 
Grocery  Co.  v.  Ga.  N.  R.  Co.,  12  I.  C.  C.  R.  229.  Different  min- 
imum car  load  on  same  commodity  illegal.  Waxelbaum  v.  At- 
lantic C.  L.  R.  Co.,  12  I.  C.  C.  R.  178.  Adjustment  illegal. 
Nobles  Bros.  Grocery  Co.  v.  F.  W.  &  D.  C.  R.  Co.,  12  I.  C.  C.  R. 
242.  Relation  in  rates  between  grain  and  its  products  long  es- 
tablished should  not  be  changed  without  good  reason.  Howard 
Mills  Co.  V.  Mo.  Pac.  R.  Co.,  12  I.  C.  C.  R.  258;  see  also  Traffic 
Bureau  v.  Mo.  Pac.  R.  Co.,  13  I.  C.  C.  R.  11.  Augusta,  Ga., 
suburbs  entitled  to  same  rate  as  Augusta.  Quimby  v.  Clyde 
S.  S.  Co.,  12  I.  C.  C.  R.  392.  Discrimination.  Banner  Milling 
Co.  V.  New  York  Cent.  etc.  R.  Co.,  13.1.  C.  C.  R.  31.  Must  be  no 
unjust  discrimination  in  distributing  cars.  Powhattan  Coal  & 
Coke  Co.  V.  Norfolk  &  W.  R.  Co.,  ]3  I.  C.  C.  R.  69 ;  Royal  C.  &  C. 
Co.  V.  So.  Ry.  Co.,  13  I.  C.  C.  R.  440;  Traer  v.  Chicago  &  A.  R. 
Co.,  13  I.  C.  C.  R.  451.  Right  to  use  private  cars  not  prohibited 
but  such  use  must  not  cause  discrimination.  Ruttle  v.  Pere  IMar- 
quette  R.  Co.,  13  I.  C.  C.  R.  179.  Must  not  discriminate  in 
through  routes  and  joint  rates.  Merchants  Freight  Bureau  of 
Little  Rock  V.  ^Midland  Valley  etc.  R.  Co.,  13  I.  C.  C.  243. 
Freight  tariff's  should  not  be  obscure.  Hydraulic  Press  Brick  Co. 
V.  St.  L.  &  S.  F.  R.  Co.,  13  I.  C.  C.  R.  342.  Little  reference  can 
be  given  to  the  value  of  property  in  fixing  express  rates.  Kindel 
V.  Adams  Ex.  Co.,  13  I,  C.  0.  R.  475.    Party  rates  must  be  open 


398  Acts  Kegulating  Commerce.  [§509. 

to  all.  Koch  Secret  Service  v.  L.  &  N.  R.  Co.,  13  I.  C.  C.  R. 
523.  Reasonable  and  just  rates  may  be  fixed  regardless  of  con- 
tracts between  express  and  railroad  companies.  Reynolds  v. 
So.  Ex.  Co..  13  I.  C.  C.  R.  536.  Rate  not  violation  of  section. 
Randolph  Lumber  Co.  v.  Seaboard  A.  L.  R.  Co.,  13  I.  C.  C.  R. 
601.  Rates  may  be  different  on  hard  and  soft  wood  timber. 
Burgess  v.  Transcontinental  Freight  Bureau,  13  I.  C.  C.  R.  668. 
Terminal  companies  may  not  discriminate  in  facilities  granted 
shippers.  Eichenberg  v.  So.  Pac.  Co..  14  I.  C.  C.  R.  250.  Order 
not  enjoined.  Southern  Pac.  Ter.  Co.  v.  Int.  Com.  Com.,  166 
Fed.  134.  Not  unjust  discrimination  to  refuse  to  transport  liq- 
uors C.  0.  D.  Royal  Brewing  Co.  v.  Adams  Ex.  Co.,  15  I.  C. 
C.  R.  255,  258.  Shippers  have  a  right  to  reach  a  common  market 
without  discrimination.  Black  Mountain  Coal  Land  Co.  v.  So. 
Ry.  Co.,  15  I.  C.  C.  R.  286.  Competition  by  water  may  justify 
different  car  load  minimum.  City  of  Spokane  v.  N.  Pac.  R.  Co., 
15  I.  C.  C.  R.  376.  Furnishing  two  cars  at  the  minimum  of  one 
when  one  large  one  cannot  be  furnished,  known  as  the  "two  for 
one"  rule,  must  be  without  discrimination.  Indianapolis  Freight 
Bureau  v.  Cleveland,  C,  C.  &  St.  L.  Ry.  Co.,  15  I.  C.  C.  R.  504, 
516.  Carrier  cannot  discriminate  in  favor  of  products  on  its 
own  line.  Standard  Lime  &  Stone  Co.  v.  Cumberland  Val.  R. 
Co.,  15  I.  C.  C.  R.  620.  624.  At  common  law  discrimination  by 
common  carriers  was  illegal.  Hays  v.  Penn.  Co.,  12  Fed.  309: 
Kinsley  v.  Buffalo,  N.  Y.  &  P.  R.  Co.,  37  Fed.  181;  Western 
Union  Tel.  Co.  v.  Call  Pub.  Co.,  181  U.  S.  92,  45  L.  Ed.  765,  21 
Sup.  Ct.  561.  Section  two  relates  to  unjust  discrimination  in 
rates,  section  three  is  broader  and  prohibits  discrimination  "in 
any  respect  whatever."  United  States  v.  Delaware,  L.  &  "W. 
R.  Co.,  40  Fed.  101,  103.  Our  section  taken  from  English 
Traffic  Acts  and  English  cases  cited  showing  the  construction 
placed  upon  the  statutes  from  which  this  section  is  taken.  Int. 
Com.  Com.  v.  B.  &  0.  R.  Co..  43  Fed.  37,  3  I.  C.  R.  192.  Affirm- 
ed. 145  U.  S.  263,  36  L.  Ed.  699,  12  Sup.  Ct.  844.  Federal 
courts  have  jurisdiction  under  this  section  regardless  of  diversity 
of  citizenship.  Little  Rock  &  ]\r.  R.  Co.  v.  East  Tenn.,  A^a.  &  Ga. 
R.  Co.,  47  Fed.  771.  Appeal  dismissed.  159  U.  S.  698,  40  L.  Ed. 
311,  16  Sup.  Ct.  189.  Does  not  require  one  road  to  receive  cars 
of  another  when  it  has  cars  of  its  own  in  which  the  freight  may 
be  transported.  Oregon  Short  Line  and  U.  N.  Ry.  Co.  v.  N. 
Pac.  R.  Co.,  51  Fed.  465.    Affirmed.     61  Fed.  158,  9.  C.  C.  A. 


§  509.]  Acts  Regulating  Commerce.  399 

409.  Only  unjust  discrimination  prohibited.  Int.  Com.  Com.  v. 
Tex.  &  Pac.  Ry.  Co.,  52  Fed.  187,  citing  Nicholson  v.  Great"  AA' . 
Ry.  Co.,  5  C.  B.  (N.  S.)  366.  Affirmed.  57  Fed.  948,  6  C.  C.  A. 
653,  20  U.  S.  App.  1,  4  I.  C.  R.  408.  Reversed  on  other  grounds, 
162  U.  S.  197,  40  L.  Ed.  940,  16  Sup.  Ct.  666.  Clause  indefinite 
and  uncertain  and  as  whether  or  not  undue  preference  exists 
must  be  left  to  a  jury,  a  violation  not  punishable  as  a  crime. 
Tozer  v.  United  States,  52  Fed.  917;  see  opinion  and  charge  of 
lower  court  United  States  v.  Tozer,  37  Fed.  635,  2  L.  R.  A.  444, 
39  Fed.  369,  39  Fed.  904.  Not  illegal  to  guarantee  that  an  opera 
troupe  shall  arrive  at  its  destination  at  a  given  time.  Foster 
V.  Cleveland,  C,  C.  &  St.  L.  Ry.  Co.,  56  Fed.  434.  Carrier  not 
required  to  permit  a  competitor  to  land  at  its  wharf.  Ilwaco  Ry. 
&  Nav.  Co.  v.  Ore.  Short  L.  and  U.  N.  Ry.  Co.,  57  Fed.  673,  6  C. 
C.  A.  495;  AVeems  Steamboat  Company  v.  People's  Steamboat 
Co.,  214  U.  S.  345,  53  L.  Ed.  ,  29  Sup.  Ct.  .  Carrier  may 
permit  use  of  its  track  to  one  to  the  exclusion  of  other  carriers. 
Little  Rock  &  M.  R.  Co.  v.  St.  L.,  I.  ]\I.  &  S.  Ry.  Co.,  59  Fed.  400. 
Affirmed,  63  Fed.  775,  11  C.  C.  A.  417,  26  L.  R.  A.  192.  Cannot 
make  a  different  charge  because  of  origin  of  commodity.  Big- 
bee  etc.  Packet  Co.  v.  Mobile  &  0.  R.  Co.,  60  Fed.  545.  Joint 
through  tariff  not  basis  for  local  tariff.  Parsons  v.  Chicago  & 
N.  AV.  Ry.  Co.,  63  Fed.  903,  11  C.  C.  A.  489.  Affirmed.  167 
U.  S.  447,  42  L.  Ed.  231,  17  Sup.  Ct.  887,  holding  that  a  shipper 
cannot  recover  a  penalty  for  discrimination  if  his  rate  is  rea- 
sonable. Giving  free  pass  violates  section.  Re  Charge  to  Grand 
Jury.  66  Fed.  146.  If  pass  is  used.  Re  Huntington  68  Fed. 
881.  No  defense  to  charge  of  discrimination  that  carrier  may  at 
will  withdraw  the  favor  to  plaintiff's  competitor.  Butchers' 
etc.  Stock  Yards  Co.  v.  L.  &  N.  R.  Co.,  67  Fed.  35,  14  C.  C.  A. 
290.  Attention  called  to  the  fact  that  the  words  "under  sub- 
stantially similar  circumstances  and  conditions"  are  not  in  this 
section.  Int.  Com.  Com.  v.  Alabama  M.  Ry.  Co.,  69  Fed.  227, 
231.  Affirmed.  74  Fed.  715,  21  C.  C.  A.  51,  41  U.  S.  App.  453, 
5  I.  C.  R.  685,  holding  that  what  is  undue  and  unreasonable 
preference  a  question  of  fact  and  not  of  law.  Affirmed.  168 
U.  S.  ]44,  42  L.  Ed.  414.  18  Sup.  Ct.  45,  holding  that  a  de- 
termination by  the  Interstate  Commerce  Commission  that  a  rate 
violates  section  three  is  subject  to  review  by  the  courts.  Second 
and  third  sections  compared.  Int.  Com.  Com.  v.  L.  &  N.  R.  Co., 
73  Fed.  409.     The  collection  as  well  as  the  delivery  of  goods  is 


400  Acts  Regulating  Commerce.  [§509. 

subject  to  the  rule  of  equal  treatment.    Detroit,  G.  II.  &  ]\I.  Ky. 
Co.  V.  Int.  Com.  Com.,  74  Fed.  803,  812,  21  C.  C.  A.  103,  43  U.  S. 
App.  308,  reversing  57  Fed.  1005,  4  I.  C.  R.  722.     Affirmed. 
167  U.  S.  633,  42  L.  Ed.  306,  17  Sup.  Ct.  986.     The  ultimate 
power  of  determining  whether  or  not  there  is  discrimination  is 
in  the  courts.    Int.  Com.  Com.  v.  East  Tenn.,  Va.  &  Ga.  Ry.  Co., 
85  Fed.  107,  117.    Affirmed.    99  Fed.  52,  39  C.  C.  A.  413.    Re- 
versed.    East  Tenn.,  Va.  &  Ga.  Ry.  Co.  v.  Int.  Com.  Com.,  181 
U.  S.  1,  45  L.  Ed.  719,  21  Sup.  Ct.  516.    There  might  be  a  viola- 
tion of  section  three  without  a  violation  of  section  four,  but  the 
facts  here  do  not  make  such  a  case.    Int.  Com.  Com.  v.  Western 
&  A.  R.  Co.,  88  Fed.  186,  194.    Affirmed.     93  Fed.  83,  35  C.  C. 
A.  217.    Modified  so  that  the  commission  could  make  an  original 
investigation  in  accord  with  the  rules  of  law  announced.     Int. 
Com.  Com.  v.  Clyde  S.  S.  Co.  and  same  v.  "Western  &  A.  R.  Co., 
181  U.  S.  29,  45  L.  Ed.  729,  21  Sup.  Ct.  512.    Length  of  time 
will  not  make  discrimination  legal,  and  the  courts  are  not  con- 
cluded by  the  determination  of  carriers.     Discrimination  pro- 
duced by  an  effective  restraint  of  trade  will  not  make  such  a 
different    state    of   circumstances   as    to    justify    discriminative 
rates.    East  Tenn..  Ya.  &  Ga.  Ry.  Co.  v.  Int.  Com.  Com.,  99  Fed. 
52,  39  C.  C.  A.  413.     Reversed  because  the  commissioners  and 
the  courts  did  not  consider  all  the  legal  principles  that  should 
have  been  applied.     Cause  dismissed  without  prejudice  to  the 
rights  of  the  commission  to  make  further  investigation  accord- 
ing to  the  law  as  announced.    East  Tenn.,  Va.  &  Ga.  Ry.  Co.  v. 
Int.  Com.  Com.,  181  U.  S.  1,  45  L.  Ed.  719,  21  Sup.  Ct.  516. 
Section  applies  to  switch  connections  and  equity  may  enjoin  dis- 
crimination.   Interstate  Stock  Yards  Co.  v.  Indianapolis  U.  Ry. 
Co.,  99  Fed.  472.    Must  be  actual  not  threatened  discrimination. 
Lehigh  V.  R.  Co.,  v.  Rainey,  112  Fed.  487.     The  same  evidence 
that  Avill  relieve  from  section  four  will  disprove  undue  prefer- 
ence under  section  three.    Int.  Com.  Com.  v.  Nashville,  C.  &  St. 
L.  Ry.  Co.,  120  Fed.  934.     Carriers  may  meet  competition  with- 
out violating  section.    Int.  Com.  Com.  v.  Cincinnati,  P.  &  V.  R. 
Co.,  124  Fed.  624.    Whether  a  preference  is  "undue"  or  "un- 
reasonable" must  be  determined  by  the  circumstances  of  each 
case.    The  act  to  regulate  commerce  was  designed  to  promote  and 
not  to  obstruct  competition.    An  able  and  comprehensive  discus- 
sion of  the  subject  of  rates.     Int.  Com.  Com.  v.  Chicago  G.  W, 
Ry,  Co.,  141  Fed.  1003.     Affirmed,  sanie  style  case,  209  V-  S. 


§  510.]  Acts  Regulating  Commerce,  401 

108,  52  L.  Ed.  705,  Sup  Ct.  ,  holding  that  competition 
negatives  any  -unlawful  intent  on  the  part  of  the  carrier.  This 
section  requires  that  carriers  shall  not  discriminate  in  furnish- 
ing cars  to  shippers.  United  States  v.  Norfolk  &  W.  Ry.  Co., 
143  Fed.  266,  74  C.  C.  A.  386,  404,  reversing  138  Fed.  849.  A 
carrier  may  legally  make  a  contract  to  build  up  and  develop  a 
particular  traffic.  Delaware,  L.  &  W.  R.  Co.  v.  Kutter,  147  Fed. 
51,  77  C.  C.  A.  315.  Petition  for  certiorari  denied.  203  U.  S.  588, 
51  L.  Ed.  330.  A  charge  in  excess  of  the  cost  of  loading  hay 
from  warehouses  illegal.  St.  Louis  Hay  &  Grain  Co.  v.  Southern 
Ry.  Co.,  149  Fed.  609.  Affirmed.  So.  Ry.  Co.  v.  St.  Louis  Hay 
&  Grain  Co.,  153  Fed.  728,  holding  that  charges  on  through  busi- 
ness not  a  basis  for  charges  on  local  business.  Reversed.  So. 
Ry.  Co.  v.  St.  Louis  Hay  and  Grain  Co.,  214  U.  S.  297,  53  L.  Ed. 
,  Sup.  Ct.  ,  holding  that  the  carrier  was  entitled  to  a 
reasonable  profit  in  excess  of  the  actual  cost.  Section  sufficiently 
broad  to  cover  demurrage  charges.  Michie  v.  New  York,  N.  H. 
&  H.  R.  Co.,  151  Fed.  694.  Rule  as  to  distribution  of  cars  to 
coal  companies.  United  States  v.  B.  &  0.  R.  Co.,  154  Fed.  108. 
Reversed.  165  Fed.  113,  C.  C.  A.  .  Logan  Coal  Co.  v. 
Penn.  R.  Co.,  154  Fed.  497;  Majestic  Coal  &  Coke  Co.  v. 
111.  Cent.  R.  C,  162  Fed.  810.  A  carrier  may  grant  to 
one  the  right  to  erect  an  elevator  on  its  right-of-way  and  refuse 
such  right  to  another.  United  States  v.  Oregon  R.  &  Nav.  Co., 
159  Fed.  975.  Express  companies  cannot  transport  free  the 
property  of  its  officers  or  employees.  United  States  v.  Wells 
Fargo  Ex.  Co.,  161  Fed.  606.  Affirmed.  Wells  Fargo  Ex.  Co. 
V.  United  States,  212  U.  S.  522,  53  L.  Ed.  ,  29  Sup.  Ct. 
Congress  in  adopting  this  section  is  presumed  to  have 
adopted  the  construction  placed  on  a  similar  English  statute  by 
the  courts  of  England.  Int.  Com.  Com.  v.  B.  &  0.  R.  Co.,  145 
U.  S.  263,  36  L.  Ed.  699,  12  Sup.  Ct.  844.  Statute  does  not  de- 
fine what  preference  is  due  or  undue,  reasonable  or  unreasonable 
and  such  questions  are  questions  not  of  law  but  of  fact.  Tex. 
&  Pac.  R.  Co.  V.  Int.  Com.  Com.,  162  U.  S.  197,  219,  220,  40  L. 
Ed.  940.  947,  948,  16  Sup.  Ct.  666. 

§  510.  Carriers  shall  accord  reasonable  and  equal  facilities  for 
interchange  of  traiRc. — Every  common  carrier  subject  to  the  pro- 
visions of  this  act  sliall,  according  to  their  respective  powers,  af- 
ford all  reasonal)le,  proper,  aiid  equal  facilities  for  the  inter- 
f'lumge  of  traffic  iKjtwccn  tlicir  respective  lines,  and  for  the  re- 


402  Acts  Regulating  Commerce.  [§  510. 

ceiving,  forwarding,  and  delivering  of  passengers  and  property 
to  and  from  their  several  lines  and  those  connecting  therewith, 
and  shall  not  discriminate  in  their  rates  and  charges  between 
such  connecting  lines ;  but  this  shall  not  be  construed  as  requir- 
ing any  such  common  carrier  to  give  the  use  of  its  tracks  or 
terminal  facilities  to  another  carrier  engaged  in  like  business. 

Paragraph  two  of  section  three  as  originally  enacted. 

A  private  stock  car  company  is  not  a  connecting  line  within 
meaning  of  section.  Burton  Stock  Car  Co.  v.  Chicago  &  Bur- 
lington R.  Co.,  1  I.  C.  C.  R.  132,  1  I.  C.  R.  329.  Commission 
may  not  compel  agents  of  one  road  to  sell  tickets  over  another. 
Chicago  &  Alton  R.  Co.  v.  Penn.  R.  Co.,  1  I.  C.  C.  R.  86,  1  I.  C. 
R.  357.  A  bridge  company  having  the  powers  of  a  common  car- 
rier bound  by  section.  Kentucky  etc.  Bridge  Co.  v.  L.  &  N.  R. 
Co.,  2  I.  C.  C.  R.  162,  2  I.  C.  R.  102.  Order  not  enforced.  37 
Fed.  567.  Carriers  may  make  through  routes  and  joint  rates 
with  some  river  boats  and  refuse  to  do  so  with  others.  Capehart 
V.  L.  &  N.  R.  Co.,  4  I.  C.  C.  R.  265,  3  I.  C.  R.  278.  A  carrier 
cannot  refuse  to  interchange  traffic  with  another  carrier  because 
that  other  is  interested  in  a  competing  line.  New  York  &  N.  Ry. 
Co.  V.  New  York  &  N.  E.  R.  Co.,  4  I.  C.  C.  R.  702,  3  I.  C.  R.  542. 
Suit  to  enforce  order  not  dismissed.  50  Fed.  867.  Section  con- 
strued and  held  not  to  give  commission  power  to  order  loaded 
cars  delivered  to  a  connecting  carrier.  R.  R.  Com.  of  Ky.  v. 
L.  &  N.  R.  Co.,  10  I.  C.  C.  R.  173,  187.  To  enforce  through 
routes  and  joint  rates  on  behalf  of  connecting  carriers  is  not  to 
take  the  use  of  terminal  facilities.  Cardiff  Coal  Co.  v.  Chicago,' 
•M.  &  St.  P.  R.  Co.,  13  I.  C.  C.  R.  460.  This  statute  a  shippers 
provision  and  indicates  the  ''open  gateway  policy"  of  the  act. 
Rahway  Valley  R.  Co.  v.  Delaware,  L.  &  W.  R.  Co.,  14  I.  C.  C. 
R.  191,  194.  Section  quoted.  Enterprise  Fuel  Co.  v.  Penn.  R. 
Co.,  16  I.  C.  C.  R.  218.  221.  Does  not  require  the  forming  of 
new  connections  or  establishment  of  new  stations.  Kentucky  & 
I.  Bridge  Co.  v.  L.  &  N.  R.  Co.,  37  Fed.  567,  621,  630.  Courts 
cannot  compel  a  through  route  and  joint  rate.  Little  Rock  etc. 
R.  Co.  V.  St.  Louis  etc.  R.  Co.,  41  Fed.  559.  A  carrier  may 
prefer  its  oa^ti  line  to  that  of  a  rival.  Little  Rock  etc.  R.  Co.  v. 
East  Tenn..  Va.  &  Ga.  Ry.  Co..  47  Fed.  771.  IMust  not  only  re- 
ceive freight  from  a  connection  but  must  also  grant  reasonable 
and  equal  facilities  for  such  connection.  New  York  &  N.  Ry. 
Co.  V.  New  York  &  N.  E.  R.  Co.,  50  Fed.  867,  870.    A  railroad 


§  511.]  Acts  Regulating  Commerce.  403 

is  not  required  to  take  a  connecting  carrier's  cars  when  it  can 
transport  the  freight  in  its  own  cars.  Oregon  Short  Line  etc. 
Ry.  Co.  V.  N.  Pac.  R.  Co.,  51  Fed.  465.  Affirmed.  61  Fed. 
158,  9  C.  C.  A.  409.  May  enjoin  a  conspiracy  to  refuse  to  make 
connections.  Toledo  etc.  R.  Co.  v.  Penn.  Co.,  54  Fed.  730,  746, 
19  L.  R.  A.  387,  5  I.  C.  R.  545,  22  U.  S.  App.  561;  Ex  parte 
Lennon,  64  Fed.  320,  22  U.  S.  App.  561,  166  U.  S.  548,  41  L. 
Ed.  1110,  17  Sup.  Ct.  658.  Not  required  to  permit  boats  of  a 
competitor  to  land  at  wharf.  Ilwaco  Ry.  &  Nav.  Co.  v.  Oregon 
Short  Line  etc.  Ry.  Co.,  57  Fed.  673,  6  C.  C.  A.  495,  reversing 
51  Fed.  611.  Nor  to  permit  use  of  its  own  tracks.  Little  Rock 
etc.  R.  Co.  V.  St.  Louis,  I.  I\I.  &  S.  Ry.  Co.,  59  Fed.  400.  Affirm- 
ed. 63  Fed.  775,  11  C.  C.  A.  417,  26  L.  R.  A.  192.  Common 
carrier  may  make  an  exclusive  contract  with  a  drayage  com- 
pany. St.  Louis  Drayage  Co.  v.  L.  &  N.  R.  Co.,  65  Fed.  39.  Or 
with  another  carrier.  Prescott  &  A.  C.  R.  Co.  v.  A.  T.  &  S.  F. 
R.  Co.,  73,  438.  Cannot  charge  more  to  transmit  freight  re- 
ceived from  one  carrier  than  from  another.  Augusta  S.  R.  Co. 
V.  Wrightsville  &  T.  R.  Co.,  74  Fed.  522.  Carrier  may  demand 
prepayment  of  freight  from  one  conecting  carrier  and  not  from 
another.  Gulf  etc.  R.  Co.  v.  Miami  S.  S.  Co.,  86  Fed.  407,  30  C. 
C.  A.  142;  Southern  Ind.  Exp.  Co.  v.  United  States  Exp.  Co., 
88  Fed.  659.  It  is  the  duty  of  a  common  carrier  to  furnish  rea- 
sonable facilities  for  unloading  and  caring  for  live  stock,  to  do 
this  by  contracting  with  one  person  to  the  exclusion  of  others 
does  not  violate  this  section.  Central  Stock  Yards  Co.  v.  L.  & 
N.  R.  Co.,  118  Fed.  113,  117,  118,  55  C.  C.  A.  63,  citing  A.  T.  & 
S.  F.  R.  Co.  V.  Denver  &  N.  0.  R.  Co.,  110  U.  S.  667,  28  L.  Ed. 
291.  4  Sup.  Ct.  185.  Express  Cases,  Memphis  &  L.  R.  R.  Co.  v. 
So.  Express  Co.,  117  U.  S.  1,  29  L.  Ed.  791,  6  Sup.  Ct.  542; 
Pullman  Palace  Car  Co.  v.  Mo.  Pac.  R.  Co.,  115  U.  S.  587,  29 
L.  Ed.  499,  6  Sup.  Ct.  194;  N.  Pac.  R.  Co.  v.  Washington  ex 
rel.  Dustin,  142  U.  S.  492,  35  L.  Ed.  1092,  12  Sup.  Ct.  283.  The 
case  and  the  doctrine  of  Central  Stock  Yards  Co.  v.  L.  &  N.  R. 
Co.,  118  Fed.  113,  55  C.  C.  A.  63,  affirmed.  Same  case,  192  U. 
S.  568,  48  L.  Ed.  565,  24  Sup.  Ct.  339.  Also  assuming,  without 
deciding,  that  injunction  the  proper  remedy  against  discrimina- 
tion, 570.  Duties  of  carrier  to  furnish  facilities  to  shipper  dis- 
cussed at  length  with  reference  to  furnishing  cars  to  ship  coal. 
TInited  States  v.  B.  &  0.  R.  Co..  165  Fed.  113. 

§  511.     Rule  as  to  long-  and  short  hauls. — Tliat  it  sliall  be  un- 


404  Acts  REC.rLATiNG  Commerce.  [§  511. 

lawful  for  any  common  carrier  subject  to  the  provisions  of  this 
act  to  charge  or  receive  any  greater  compensation  in  the  aggre- 
gate for  the  transportation  of  passengers  or  of  like  kind  of  prop- 
erty, under  substantially  similar  circumstances  and  conditions, 
for  a  shorter  than  for  a  longer  distance  over  the  same  line,  in 
the  same  direction,  the  shorter  being  included  within  the  longer 
distance ;  but  this  shall  not  be  construed  as  authorizing  any  com- 
mon carrier  within  the  terms  of  this  act  to  charge  and  receive 
as  great  compensation  for  a  shorter  as  for  a  longer  distance: 
Provided,  however.  That  upon  application  to  the  commission 
appointed  under  the  provisions  of  this  act,  such  common  carrier 
may,  in  special  cases,  after  investigation  by  the  commission,  be 
authorized  to  charge  less  for  longer  than  for  shorter  distances 
for  the  transportation  of  passengers  or  property ;  and  the  com- 
mission may  from  time  to  time  prescribe  the  extent  to  M'hich 
such  designated  common  carrier  may  be  relieved  from  the  oper- 
ation of  this  section  of  this  act. 

Section  four  of  original  act. 

The  English  Railway  and  Traffic  Act  of  1888,  section  27, 
gave  the  commissioners  power  to  direct  that  no  greater  charge 
should  be  made  for  a  shorter  than  a  longer  haul  when  the  cir- 
cumstances demanded  such  direction.  Halsbury's  Laws  of  Eng- 
land, vol.  4,  p.  81. 

"Under  substantially  similar  circumstances"  defined  and  cir- 
cumstances that  relieve  from  the  section  discussed.  Re  Southern 
Ry.  &  Steamship  Co.  and  Petition  .of  L.  &  N.  R.  Co.,  1  I.  C.  R. 

15,  17,  31,  76,  278,  1  I.  C.  C.  R.  31.  Section  not  to  be  con- 
strued without  a  formal  petition.    Re  So.  Pac.  R.  Co.,  1  I.  C.  R. 

16.  Where  several  roads  join  in  a  tariff  for  the  longer,  and  a 
less  number  in  that  for  the  shorter  haul,  the  act  applies.  Boston 
&  A.  R.  Co.  V.  Boston  &  L.  R.  Co.,  1  I.  C.  C.  R.  158,  1  I.  C. 
R.  400,  408,  500,  571.  Carrier  competition  may  be  met  even 
though  the  longer  through  haul  is  less  than  the  charge  over  the 
shorter  haul.  Allen  v.  Louisville,  New  Albany  etc.  R.  Co.,  1 
I.  C.  C.  R.  199,  1  I.  C.  R.  621.  Must  be  actual  competition  of 
controlling  force.  Harwell  v.  Columbus  &  W.  R.  Co.,  1  I.  C. 
C.  R.  236.  1  I.  C.  R.  631 ;  San  Bernardino  Board  of  Trade  v.  A. 
T.  &  S.  F.  R.  Co.,  4  I.  C.  C.  R.  104,  3  I.  C.  R.  138.  Order  not 
enforced.  Int.  Com.  Com.  v.  A.  T.  &  S.  F.  R.  Co.,  50  Fed.  295. 
Mrv  violate  section  by  a  different  classification  for  shorter  haul. 
Martin  v.  So.  Pac.  Co.,  2  I.  C.  C.  R.  1,  2  I.  C.  R.  1.    Burden 


§  511.]  Acts  Regulating  Commerce.  405 

on  carrier  to  show  different  circumstances.  Spartanburg  Board 
of  Trade  v.  Richmond  &  D.  R.  Co.,  2  I.  C.  C.  R.  304,  2  I.  C.  R. 
193.  Validity  of  tlie  charge  determined  not  by  projDortions  but 
by  the  rate  as  an  entirety.  Imperial  Coal  Co.  v.  Pittsburg  &  L. 
E.  R.  Co.,  2  I.  C.  C.  R.  618,  2  I.  C.  R.  436.  Principles  given 
showing  application  of  section  to  tariffs  and  classification  in 
southern  states.  Re  Atlanta  &  AV.  P.  R.  Co.,  3  I.  C.  C.  R.  19, 
46,  2  I.  C.  R.  461.  Free  cartage  at  the  longer  and  not  at  the 
shorter  may  constitute  a  violation  of  section.  Stone  v.  Detroit 
etc.  R.  Co.,  3  I.  C.  C.  R.  613,  3  I.  C.  R.  60.  Blanket  rate  legal 
when  forced  by  competition.  Rice  v.  A.  T.  &  S.  F.  R.  Co.,  4  I. 
C.  C.  R.  228,  3  I.  C.  R.  263.  Rate  legal  because  of  competition. 
King  V.  New  York,  N.  H.  &  H.  R.  Co.,  4  I.  C.  C.  R.  251,  3  I.  C. 
R.  272.  Basing  point  rate  plus  the  local  not  approved.  Hamil- 
ton &  Brown  v.  Chattanooga,  R.  &  C.  R.  Co.,  4  I.  C.  C.  R.  686, 
3  I.  C.  R.  482.  Local  carrier  participating  in  interstate  haul 
cannot  escape  the  provisions  of  this  section.  James  &  Mayer 
Buggy  Co.  V.  Cincinnati,  N.  0.  &  T.  P.  R.  Co.,  4  I.  C.  C.  R.  744, 
3  I.  C.  R.  682.  Order  not  enforced  by  circuit  court.  Int.  Com. 
Com.  V.  C.  N.  0.  &  T.  P.  R.  Co.,  56  Fed.  925.  Circuit  court  re- 
versed, 162  U.  S.  184,  40  L.  Ed.  935,  16  Sup.  Ct.  700.  No  reason 
for  greater  charge  for  shorter  haul.  Perry  v.  Florida  Cent.  & 
P.  R.  Co.,  5  I.  C.  C.  R.  97,  3  I.  C.  R.  740.  Section  intended  to 
maintain  not  destroy  advantages  of  location.  Raworth  v.  N. 
Pac.  R.  Co.,  5  I.  C.  C.  R.  234,  3  I.  C.  R.  857.  Carriers  may  not 
determine  for  themselves  whether  or  not  the  circumstances  jus- 
tify a  greater  charge  for  a  short  haul,  except  on  their  own  line ; 
where  there  is  a  joint  line,  must  before  making  the  charge  ob- 
tain order  of  commission.  Trammel  etc.  R.  R.  Comr's.  of  Ga.  v. 
Clyde  Steamship  Co.,  5  I.  C.  C.  R.  324,  4  I.  C.  R.  120.  Order 
not  enforced.  Int.  Com.  Com.  v.  W.  &  A.  R.  Co.,  88  Fed.  186, 
93  Fed.  83,  35  C.  C.  A.  226,  181  U.  S.  29,  45  L.  Ed.  729,  21  Sup. 
Ct.  512.  Rates  to  Pacific  Coast  Terminals  may  be  lower  than  to 
Spokane.  Merchants  Union  of  Spokane  Falls  v.  N.  P.  R.  Co.,  5 
I.  C.  C.  R.  478,  4  I.  C.  R.  183.  Order  not  enforced.  Farmers  L. 
&  T.  Co.  V.  N.  Pac.  R.  Co.,  83  Fed.  249.  Greater  charge  to 
Chattanooga  than  thi-ough  Chattanooga  to  Nashville  illegal. 
Board  of  Trade  of  Chattanooga  v.  E.  T.,  V.  &  G.  R.  Co.,  5  I.  C. 
C.  R.  546,  4  I.  C.  R.  213.  Order  enforced.  85  Fed.  107,  99  Fed. 
52,  39  C.  C.  A.  413.  Reversed  in  Supreme  Court.  East  Tenn., 
Va.  &  Ga.  R.  Co.  v.  Int.  Com.  Com.,  181  U.  S.  1,  45  L.  Ed.  719, 


406  Acts  Regulating  Commerce.  [§  511. 

21  Sup.  Ct.  516.  When  difference  justifies,  it  must  be  reason- 
able. Competition  for  the  longer  haul  between  carriers  subject 
to  the  act  not  a  dissimilar  circumstance.  Gerke  Brewing  Co.  v. 
L.  &  N.  R.  Co.,  5  I.  C.  C.  R.  596,  4  I.  C.  R.  267.  The  fact  that 
one  city  is  larger  than  another,  no  such  dissimilar  condition  as 
the  statute  requires.  Board  of  Trade  of  Troy  v.  Ala.  Midland 
R.  Co.,  6  I.  C.  C.  R.  1.  Order  not  enforced.  Int.  Com.  Com.  v. 
Ala.  M.  R.  Co.,  69  Fed.  227,  74  Fed.  715,  21  C.  C.  A.  51,  168 
U.  S.  144,  42  L.  Ed.  414,  18  Sup.  Ct.  45.  Competition  of  mar- 
kets and  carriers  not  justify  carriers  in  first  instance  to  charge 
more  for  a  longer  than  a  shorter  haul,  but  the  carrier  must  ob- 
tain permission  of  the  Interstate  Com.  Com.  Behlmer  v.  Mem- 
phis &  C.  R.  Co.,  6  I.  C.  C.  R.  257,  4  I.  C.  R.  520.  Order  not 
enforced.  71  Fed.  835.  Circuit  court  reversed.  83  Fed.  898. 
Circuit  court  of  appeals  reversed.  L.  &  N.  R.  Co.  v.  Behlmer, 
175  U.  S.  648,  44  L.  Ed.  309,  20  Sup.  Ct.  209.  Shortage  of  grain 
crop  sufficient  to  justify  temporary  order  to  charge  less  for  a 
longer  than  for  a  shorter  haul.  Re  Application  of  Freemont, 
Elkhorn  &  Mo.  Valley  R.  Co.  et  al.,  6  I.  C.  C.  R.  293.  Each 
case  must  be  determined  on  its  special  facts.  Re  Petition  of 
Cincinnati,  II.  &  D.  R.  Co.  For  Relief  Under  Section  4,  6  I. 
C.  C.  R.  323.  World's  Fair  sufficient  reason  for  relief  under 
proviso.  Re  Petition  of  Cincinnati,  H.  &  D.  R.  Co.,  for  Relief 
Under  Section  4.  6  I.  C.  C.  R.  323.  Re  Application  of  Rome, 
Waterto^^•n  etc.  R.  Co.  6  I.  C.  C.  R.  328.  That  there  is  a  shorter 
line  to  the  same  point  does  not  justify  relief.  Hill  &  Bro.  v. 
Nashville,  C.  &  St.  L.  R.  Co.,  6  I.  C.  C.  R.  343.  ''Line"  means 
a  physical  line,  not  a  mere  business  arrangement.  Daniels  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  6  I.  C.  C.  R.  458,  476.  To  Kansas 
City  the  longer  distance,  a  less  rate  should  not  be  given  than  to 
Wichita  the  shorter.  Johnston-Larimer  Dry  Goods  Co.  v.  A. 
T.  &  S.  F.  R.  Co.,  6  I.  C.  C.  R.  568,  12  I.  C.  C.  R.  47,  188.  Vio- 
lation of  section  a  form  of  unjust  discrimination.  McClelen  v. 
So.  Ry.  Co.,  6  I.  C.  C.  R.  588.  Order  not  enforced.  Int.  Com. 
Com.  v.  So.  Ry.  Co.,  105  Fed.  703.  Dissimilaritj^  of  the  carrier's 
owTL  making  not  justify  deviation  from  rule.  Jerome  Hill  Cot- 
ton Co.  V.  M.  K.  &  T.  Ry.  Co.,  6  I.  C.  C.  R.  601.  Competition  at 
the  longer  distance  point  by  carriers  subject  to  act  not  justify 
less  rate  for  longer  haul  unless  by  permission  of  commi.ssion. 
Board  of  Trade  of  Lynchburg  v.  Old  Dominion  Steamship  Co., 
6  I.  C.  C.  R.  632.    Re  Alleged  Violation  of  Fourth  Section.    7  I. 


§  511.]  Acts  Regulating  Commerce.  407 

C.  C.  E.  61.  Section  not  violated  by  charging  the  same  rate  for 
the  shorter  as  for  the  longer  distance.  Milk  Producers'  Pro- 
tective Asso.  V.  Delaware,  L.  &  W.  E.  Co.,  7  I.  C.  C.  E.  93,  163. 
Carriers  may  meet  but  not  extinguish  water  competition.  Brewer 
V.  L.  &  N.  E.  Co.,  7  I.  C.  C.  E.  224,  235;  Eailroad  Comrs.  of 
Ky.  V.  Cincinnati,  N.  0.  &  T.  P.  E.  Co.,  7  I.  C.  C.  E.  380.  Order 
not  enforced.  Brewer  v.  Central  of  Ga.  E.  Co.,  84  Fed.  258, 
Competition  of  markets  not  sufficient  to  relieve  from  statute. 
FeweU  v.  Eichmond  &  D.  E.  Co.,  7  I.  C.  C.  E.  354.  Higher 
rates  from  New  Orleans  to  LaGrange  the  shorter  distance  than 
to  Atlanta  illegal.  Callaway  v.  L.  &  N.  E.  Co.,  7  I.  C.  C.  E.  431. 
Order  enforced.  102  Fed.  709.  Circuit  court  reversed.  Int. 
Com.  Com.  v.  L.  &  N  E.  Co.,  190  U.  S.  273,  47  L.  Ed.  1047,  23 
Sup.  Ct.  687.  Water  competition  justifies  a  less  charge  for  the 
longer  haul.  Savannah  Bureau  of  Freight  &  Transportation  v. 
Charleston  &  S.  E.  Co.,  7  I.  C.  C.  E.  458 ;  Dallas  Freight  Bureau 
V.  Tex.  &  Pac.  Ey.  Co.,  8  I.  C.  C.  E.  33.  Competition  with  a 
foreign  carrier  not  subject  to  the  law  justifies  an  order  of  the 
commission  relieving  from  section.  Ee  Application  of  A.  T.  & 
S.  F.  Ey.  Co.,  7  I.  C.  C.  E.  593.  Ee  Alleged  Disturbance  of 
Passenger  Eates  by  Canadian  Pacific  E.  Co.,  8  I.  C.  C.  E.  71. 
Mere  fact  of  competition  not  of  itself  relief  from  section.  Phil- 
lips, Bailey  &  Co.  v.  L.  &  N.  E.  Co.,  8  I.  C.  C.  E.  93,  citing  de- 
cisions of  Supreme  Court.  May  make  lower  rate  on  goods  ex- 
ported than  on  those  consumed  at  the  port.  Kemble  v.  Boston 
&  A.  E.  Co.,  8  I.  C.  C.  E.  110.  Section  violated.  Ee  Alleged 
Violation  of  Act  by  St.  L.  &  S.  F.  Ey.  Co.,  8  I.  C.  C.  E.  290. 
Eailroad  Comr's.  of  Kansas  v.  A.  T.  &  S.  F.  Ey.  Co.,  8  I.  C.  C. 
E.  304;  Chicago  Fire  Proof  etc.  Co.  v.  Chicago  &  N.  W.  Ey. 
Co.,  8  I.  C.  C.  E.  316.  Kindel  v.  A.  T.  &  S.  F.  Ey.  Co.,  8  I.  C. 
C.  E.  608,  9  I.  C.  C.  E.  606.  Eail  competition  may  be  consid- 
ered, the  effect  of  such  competition  being  a  question  of  fact  in 
each  case.  Tileston  ^Milling  Co.  v.  N.  Pac.  Ey.  Co.,  8  I.  C.  C. 
E.  346,  citing  and  following  Int.  Com.  Com.  v.  Alabama  M.  E. 
Co.,  168  U.  S.  144,  42  L.  Ed.  414,  18  Sup.  Ct.  45.  Dissimilar 
conditions.  Gustin  v.  Burlington  &  M.  E.  E.  Co.,  8  I.  C.  C.  E. 
481 ;  Marten  v.  L.  &  N.  E.  Co.,  9  I.  C.  C.  E.  581.  Facts  not  au- 
thorizing the  difference  existing  between  the  long  and  short  haul 
rates.  Board  of  Trade  of  Hampton  v.  N.  C.  &  St.  L.  Ey.  Co., 
8  I.  C.  C.  E.  503.  Order  not  enforced.  Int.  Com.  Com.  v.  N. 
C.  &  St.  L.  Ey.  Co.,  120  Fed.  934.    Demurrage  charges  not  within 


408  xVcTs  Regl'lating  Commerce.  [§  511. 

section.  Peuii.  Millers'  JSlute  Asso.  v.  Philadelphia  &  R.  Ry. 
Co.,  8  I.  C.  C.  R.  531.  All  forms  of  competition  must  be 
considered,  but  in  each  case  it  is  a  question  of  fact  as  to  the 
effect  to  be  given  such  competition.  Holdzkom  v.  Mich.  Cent. 
Ry.  Co.,  9  I.  C.  C.  R.  42;  Dallas  Freight  Bureau  v.  Austin  & 
N.  "W.  R.  Co.,  9  I.  C.  C.  R.  68.  Carrier  may  meet  competition 
of  shorter  line.  Ulrick  v.  Lake  Shore  etc.  Ry.  Co.,  9  I.  C.  C. 
R.  495.  Competitive  conditions  at  Kansas  City  entitle  her  to  a 
lower  rate  to  Texas  ports  than  Wichita.  ]\Iayor  etc.  of  Wichita 
V.  A.  T.  &  S.  F.  Ry.  Co.,  9  I.  C.  C.  R.  534,  558,  citing  Supreme 
Court  decisions  since  the  case  of  Jolmston  etc.  Dry  Goods  Co. 
V.  A.  T.  &  S.  F.  Ry.  Co.,  6  I  C.  C.  R.  568 ;  see  also  same  plain- 
tiff V.  New  York  &  Tex.  S.  S.  Co.,  12  I.  C.  C.  R.  58.  Higher 
rate  to  Chattanooga  than  to  Nashville  the  longer  distance  not 
illegal  under  the  circumstances.  Chamber  of  Commerce  of  Chat- 
tanooga V.  So.  Ry.  Co.,  10  I.  C.  C.  R.  Ill,  citing  and  following 
previous  holding  of  Supreme  Court  in  same  case,  181  U.  S.  29, 
45  L.  Ed.  729,  21  Sup.  Ct.  512.,  Same  holding  as  to  cities  in 
Alabama  and  Mississippi.  Aberdeen  Group  Commercial  Asso. 
V.  M.  &  0.  R.  Co.,  10  I.  C.  C.  R.  289.  As  to  cities  in  Florida. 
Rock  Hill  Buggy  Co.  v.  So.  Ry.  Co.,  11  I.  C.  C.  R.  229.  Differ- 
ence greater  than  section  justified.  Gardner  &  Clark  v.  So.  Ry. 
Co.,  10  I.  C.  C.  R.  342 ;  Lehman-Higginson  Grocery  Co.  v.  A, 
T.  &  S.  F.  R.  Co.,  10  I.  C.  C.  R.  460.  Burden  on  carrier  to  show 
circumstances  justifying  greater  charge  for  shorter  haul.  Geo. 
M.  Speigle  Co.  v.  Chesapeake  &  0.  Ry.  Co.,  11  I.  C.  C.  R.  367. 
Section  not  violated.  Dewey  Bros.  Co.  v.  B.  &  0.  R.  Co.,  11  I. 
C.  C.  R.  475;  Griffin  Grocery  Co.  v.  So.  Ry.  Co.,  11  I.  C.  C.  R. 
522 ;  Farrar  v.  So.  Ry.  Co.,  11  I.  C.  C.  R.  522 ;  Hastings  Malting 
Co.  V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  11  I.  C.  C.  R.  675;  Village 
of  Goodhue  v.  Chicago  G.  W.  Ry.  Co.,  11  I.  C.  C.  R.  683 ;  Dur- 
ham V.  111.  Cent.  R.  Co.,  12  I.  C.  C.  R.  37.  Pecos  IMercantile  Co. 
V.  A.  T.  &  S.  F.  Ry.  Co.,  13  I.  C.  C.  R.  173 ;  R.  R.  Com.  of  Ky. 
V.  L.  &  N.  R.  Co.,  13  I.  C.  C.  R.  300;  Topeka  Banana  Dealers' 
Asso.  V.  St.  L.  &  S.  F.  R.  Co.,  13  I.  C.  C.  R.  620;  Phillips- 
Trawick- James  Co.  v.  So.  Pac.  Co.,  13  I.  C.  C.  R.  644.  A  mere 
theoretical  or  paper  rate  not  sufficient  to  show  violation.  I\ro.  & 
Kan.  Shippers  Asso.  v.  M.  K.  &  T.  Ry.  Co.,  12  I.  C.  C.  R.  483. 
The  different  circumstanoes  must  not  only  be  clearly  sho\^Ti,  but 
must  also  clearly  exercise  a  potent  or  controlling  influence. 
Bovaird  Supply  Co.  v.  A.  T.  &  S.  F.  Ry.  Co.,  13  I.  C.  C.  R.  56. 


§  511.]  Acts  Regulating  Commerce.  409 

Facts  that  entitle  the  carrier  to  charge  more  for  the  shorter  than 
the  longer  haul.  Gump  v.  B.  &  0.  R.  Co.,  14  I.  C.  C.  R.  98 ; 
Chicago  Sash  &  Door  Asso.  v.  Norfolk  &  W.  R.  Co.,  14  I.  C.  C. 
R.  594.  Section  violated.  Greater  Des  Moines  Com.  v.  Chicago 
G.  AV.  Ry.  Co.,  14  I.  C.  C.  R.  294.  Section  referred  to  and  held 
not  violated.  MacGillis  &  Gibbs  Co.  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  15  I.  C.  C.  R.  329.  Section  not  affected  by  amendment  of 
June  29,  1906.  City  of  Spokane  v.  N.  Pac.  R.  Co.,  15  I.  C.  C.  R. 
376,  388.  Competition  is  a  fact  that  justifies  a  less  charge  for 
a  longer  than  a  shorter  haul.  Ex  parte  Koehler,  31  Fed.  315, 
12  Sa^^ry.  446 ;  Int.  Com.  Com.  v.  Cincinnati,  N.  0.  &  T.  P.  Ry. 
Co.,  56  Fed.  951.  Reversed.  162  U.  S.  184,  40  L.  Ed.  935,  16 
Sup.  Ct.  700.  Where  circumstances  and  conditions  are  not 
similar,  the  law  does  not  apply.  When  there  is  doubt  as  to 
whether  or  not  there  is  a  difference,  application  for  relief  should 
be  made  to  the  commission.  Mo.  Pac.  Ry.  Co.  v.  Tex.  &  Pac.  Ry. 
Co.,  31  Fed.  862.  That  the  rate  for  the  longer  haul  was  a  joint 
rate  will  not  relieve  from  section.  Jimod  v.  Chicago  &  N.  W. 
Ry.  Co.,  47  Fed.  290;  Osborne  v.  Chicago  &  N.  W.  Ry.  Co.,  48 
Fed.  49.    Reversed  on  this  point.     Chicago  &  N.  W.  v.  Osborne, 

52  Fed.  912,  3  C.  C.  A.  347.    Followed,  United  States  v.  Mellen, 

53  Fed.  229 ;  Parsons  v.  Chicago  &  N.  W.  Ry.  Co.,  63  Fed.  903, 
11  C.  C.  A.  489,  37  U.  S.  App.  394.  Affirmed.  167  U.  S.  447, 
42  L.  Ed.  231,  17  Sup.  Ct.  887 ;  Int.  Com.  Com.  v.  Alabama  M. 
Ry.  Co.,  69  Fed.  227.  Affirmed.  74  Fed.  715,  21  C.  C.  A.  51, 
168  U.  S.  144,  42  L.  Ed.  414,  18  Sup.  Ct.  45.  The  carrier  may 
act  under  the  proviso  without  first  applying  to  the  commission, 
though  the  commission  has  the  right  to  revise  this  action.  Int. 
Com.  Com.  v.  A.  T.  &  S.  F.  R.  Co.,  50  Fed.  295,  300;  Detroit, 
G.  H.  &  M.  Ry.  Co.  v.  Int.  Com.  Com.,  74  Fed.  803,  819,  21  C. 
C.  A.  103,  43  U.  S.  App.  308,  reversing  57  Fed.  1005,  4  I.  C.  R. 
722.  Affirmed.  167  U.  S.  633,  42  L.  Ed.  306,  17  Sup.  Ct.  986. 
Where  the  more  distant  point  can  be  reached  by  rail  and  water 
and  the  less  distant  by  only  one  rail  carrier,  the  circumstances 
are  not  similar.  Behlmer  v.  L.  &  N.  R.  Co.,  71  Fed.  835.  Re- 
versed. 83  Fed.  898,  28  C.  C.  A.  229.  Decree  of  circuit  court 
of  appeals  reversed.  L.  &  N.  R.  Co.  v.  Behlmer,  175  IT.  S.  648, 
44  L.  Ed.  309,  20  Sup.  Ct.  209.  This  section  does  not  prevent 
common  carriers  from  making  special  rates  to  meet  competition 
and  inci'ease  their  business.  Int.  Com.  Coin.  v.  Ala])ania  i\r.  R. 
Co.,  74  Fed.  715,  723,  724,  21  C.  C.  A.  51,  41  U.  S.  App.  453, 


410  Acts  Regulating  Commerce.  [§  511. 

5  I.  C.  R.  685.  Charges  for  delivery,  storage,  etc.,  are  included 
within  meaning  of  section.  Detroit,  G.  II.  &  M.  Ry.  Co.  v.  Int. 
Com.  Com.,  74  Fed.  803.  Competition  to  justify  a  greater 
charge  for  the  shorter  haul  must  be  of  that  kind  which  could 
carry  the  freight  to  the  longer  distance  point  if  the  carrier 
making  such  charge  did  not.  Behlmer  v.  L.  &  N.  R.  Co.,  83  Fed. 
898,  906.  Reversed.  L.  &  N.  R.  Co.  v.  Behlmer,  175  U.  S.  648, 
44  L.  Ed.  309,  20  Sup.  Ct.  209.  Competition  between  rival 
rail  carriers  must  be  considered  in  determining  whether  or  not 
dissimilar  conditions  exist.  Brewer  v.  Central  of  Ga.  Ry.  Co., 
84  Fed.  258.  Mere  dissimilarity  insufficient,  must  be  sufficient 
to  justify  the  difference  in  the  charge.  Int.  Com.  Com.  v.  East 
Tcnn.,  Va.  &  Ga.  Ry.  Co.,  85  Fed.  107.  Affirmed.  99  Fed.  52, 
39  C.  C.  A.  413.  Reversed.  East  Tenn.,  Va.  &  Ga.  Ry.  Co.  v. 
Int.  Com.  Com.,  181  U.  S.  1,  45  L.  Ed.  719,  21  Sup.  Ct.  516. 
"What  facts  constitute  dissimilar  conditions.  Int.  Com.  Com.  v. 
Western  &  A.  R.  Co.,  88  Fed.  186.  Affirmed.  93  Fed.  83,  35 
C.  C.  A.  217,  181  U.  S.  29,  45  L.  Ed.  729,  21  Sup.  Ct.  512. 
Discrimination  cannot  be  justified  where  the  dissimilar  condi- 
tions are  created  by  roads  strifling  competition.  East  Tenn., 
Va.  &  Ga.  Ry.  Co.  v.  Int.  Com.  Com.,  99  Fed.  52,  62,  63,  39  C. 
C.  A.  413.  Reversed  by  Supreme  Court.  181  U.  S.  1,  45  L.  Ed. 
719,  21  Sup.  Ct.  516.  Commission  finding  that  the  rate  for  the 
shorter  haul  illegal  will  not  be  set  aside  unless  error  clearly 
appears.  Int.  Com.  Com.  v.  L.  &  N.  R.  Co.,  102  Fed.  709.  Re- 
versed. 108  Fed.  988,  46  C.  C.  A.  685,  190  U.  S.  273,  47  L.  Ed. 
1047,  23  Sup.  Ct.  687.  The  commission  must  consider  the  evi- 
dence showing  all  kinds  of  competition.  Int.  Com.  Com.  v.  So. 
Ry.  Co.,  105  Fed.  705.  Evidence  shoAving  no  violation  of  this 
section  will  show  that  there  is  no  violation  of  section  three.  Int. 
Com.  Com.  v.  Nashville,  C.  &  St.  L.  Ry.  Co.,  120  Fed.  934.  The 
question  of  whether  or  not  circumstances  are  or  are  not  dissim- 
ilar is  one  of  fact  peculiarly  within  the  province  of  the  commis- 
sion to  determine.  Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v.  Int.  Com. 
Com.,  162  U.  S.  184,  194,  40  L.  Ed.  935,  938,  16  Sup.  Ct.  700. 
Section  relates  only  to  transportation  by  rail  and  charges  there- 
for and  not  to  cartage.  Int.  Com.  Com.  v.  Detroit,  G.  H.  &  M.  R. 
Co.,  167  U.  S.  633,  644,  42  L.  Ed.  306,  309,  17  Sup.  Ct.  986.  All 
competition  will  not  justifj^  the  greater  charge  for  the  shorter 
haul  (167).  Carrier  need  not  first  apply  to  the  commission  be- 
fore acting  on  dissimilar  conditions.      (167,   169).     Int.   Com. 


§  512.]  Acts  Kegulating  Commerce.  411 

Com.  V.  Alabama  M.  K.  Co.,  168  U.  S.  144,  167,  169,  42  L.  Ed. 
414,  423,  424,  18  Sup.  Ct.  45.  This  case  as  said  by  Mr.  Justice 
Harlan,  dissenting  goes  a  long  ways  to  make  the  commission  a 
useless  body.  Market  competition  (662),  and  competition  of 
carriers  subject  to  act  must  be  considered  by  the  commission 
(669).  L.  &  N.  R.  Co.  v.  Behlmer,  175  U.  S.  648,  44  L.  Ed.  309, 
20  Sup.  Ct.  209;  East  Tenn.,  Va.  &  Ga.  Ry.  Co.  v.  Int.  Com. 
Com.,  181  U.  S.  1,  45  L.  Ed.  719,  21  Sup.  Ct.  516;  Int.  Com. 
Com.  V.  Clyde  S.  S.  Co.,  181  U.  S.  29,  45  L.  Ed.  729,  21  Sup. 
Ct.  512.  Possibility  of  competition  at  the  shorter  distance  point 
not  material.  Int.  Com.  Com.  v.  L.  &  N.  R.  Co.,  190  U.  S.  273, 
47  L.  Ed.  1047,  23  Sup.  Ct.  687.  In  fixing  rates  carriers  may 
take  into  consideration  genuine  competition  with  other  carriers. 
Int.  Com.  Com.  v.  Chicago  G.  W.  R.  Co.,  209  U.  S.  108,  119,  52 
L.  Ed.  705,  712,  29  Sup.  Ct. 

§  512.  Pooling  of  freights  and  division  of  earnings  prohibited. 
— That  it  shall  be  unlawful  for  any  common  carrier  subject  to 
the  provisions  of  this  act  to  enter  into  any  contract,  agreement, 
or  combination  with  any  other  common  carrier  or  carriers  for 
the  pooling  of  freights  of  different  and  competing  railroads,  or 
to  divide  between  them  the  aggregate  or  net  proceeds  of  the 
earnings  of  such  railroads,  or  anj^  portion  thereof;  and  in  any 
case  of  an  agreement  for  the  pooling  of  freights  as  aforesaid, 
each  day  of  its  continuance  shall  be  deemed  a  separate  offense. 

Section  five  of  original  act. 

The  Canadian  Act,  Canadian  Railway  Law  by  MacMurchy  & 
Denison,  501,  is  as  follows : 

''No  company  shall,  except  in  accordance  with  the  provisions 
of  this  act,  directly  or  indirectly,  pool  its  freights  or  tolls  with 
the  freights  or  tolls  of  any  other  railway  company  or  common 
carrier,  nor  divide  its  earnings  or  any  portion  thereof  with  any 
other  railway  company  or  common  carrier,  nor  enter  into  any 
contract,  arrangement,  agreement,  or  combination  to  effect,  or 
which  may  effect,  any  such  result,  without  leave  therefor  having 
been  obtained  from  the  board." 

In  the  same  volume,  p.  502,  referring  to  this  act,  it  is  stated: 

"Railroad  pools  are  not  contrary  to  public  policy  in  Eng- 
land or  in  Canada.  Section  284  of  the  Railway  Act,  which  is 
similar  in  its  terms  to  section  87  of  the  Railway  Clauses  Act. 
1845,  permits  working  or  traffic  agreements:  See  Hare  v.  L.  & 
N.  AV.  R.  Co.,  2  J.  &  IT.  480,  30  L.  J.  Ch.  817.    Two  companies 


412  Acts  Regulating  Commerce.  [§  512. 

having  the  same  termini,  may,  in  order  to  avoid  competition, 
come  to  an  agreement  with  reference  to  traffic  along  existing 
routes  on  their  lines,  with  a  view  to  distribute  such  traffic,  and 
the  revenue  derived  from  it,  between  the  two  companies.  This 
case  was  followed  in  Great  Western  R.  W.  Co.  v.  Grand  Trunk 
R.  W.  Co.,  25  U.  C.  R.  37,  and  Campbell  v.  Northern  R.  W.  Co., 
26  Gr.  522." 

Pooling  between  a  rail  carrier  subject  to  the  act  and  a  pipe 
line  not  subject  not  within  prohibition  of  section.  Independent 
Refiners'  Asso.  v.  Western  New  York  &  Penn.  R.  Co.,  5  I.  C.  C. 
R.  415,  4  I.  C.  R.  162.  Fines  of  carriers  for  violating  an 
agreement  to  divide  traffic  within  section.  Freight  Bureau  of 
Cincinnati  v.  Cincinnati,  N.  0.  &  T.  P.  R.  Co.,  6  I.  C.  C.  R.  195, 
4  I.  C.  R.  592.  Order  not  enforced.  Int.  Com.  Com.  v.  Cin- 
cinnati, N.  0.  &  T.  P.  R.  Co.,  76  Fed.  183,  167  U.  S.  479,  42  L. 
Ed.  243,  17  Sup.  Ct.  896.  A  pool  may  be  formed  by  agreements 
as  to  routing.  Consolidated  Forwarding  Co.  v.  So.  Pac.  Co.,  9 
I.  C.  C.  R.  182,  206-a.  Order  enforced.  Int.  Com.  Com.  v.  So. 
Pac.  Co.,  132  Fed.  829.  Reversed.  So.  Pac.  Co.  v.  Int.  Com. 
Com.,  200,  U.  S.  536,  50  L.  Ed.  585,  26  Sup.  Ct.  330;  Consoli- 
dated Forwarding  Co.  v.  So.  Pac.  Co.,  10  I.  C.  C.  R.  590.  Doubt- 
ful whether  a  pool  of  passenger  earnings  from  immigrant  traffic 
in  violation  of  section.  Re  Transportation  of  Immigrants.  10 
I.  C.  C.  R.  13.  Purpose  of  section  to  prevent  restriction  of  com- 
petition. Tift  V.  So.  Ry.  Co.  10  I.  C.  C.  R.  548.  580.  Order  en- 
forced. 138  Fed.  753 ;  So.  Ry.  Co.  v.  Tift.  148  Fed.  1021 ;  206 
U.  S.  428,  51  L.  Ed.  1124,  27  Sup.  Ct.  709.  Pooling  by  water 
carriers  not  within  section.  Cosmopolitan  Shipping  Co.  v.  Ham- 
burg-American P.  Co.,  13  I.  C.  C.  R.  266.  274.  It  was  not  the 
intention  of  the  interstate  commerce  act  to  include  carriers 
within  the  Sherman  Anti-Trust  Act.  United  States  v.  Trans- 
Missouri  Freight  Asso.,  53  Fed.  440,  1  Fed.  Anti-Trust  Dec.  80. 
Affirmed,  holding  that  combinations  in  restraint  of  trade  must 
be  imreasonable  to  be  illegal.  United  States  v.  Trans-Missouri 
Freight  Asso.,  58  Fed.  58,  73,  7  C.  C.  A.  15,  97,  24  L.  R.  A.  73, 
1  Fed.  Anti-Trust  Dec.  186.  Reversed,  holding  that  the  Sher- 
man Anti-Trust  Act  applies  to  carriers,  that  all  contracts  in  re- 
straint of  trade,  whether  or  not  such  restraint  is  unreasonable, 
are  illegal.  United  States  v.  Trans-lMissouri  Freight  Asso.,  166 
U.  S.  290,  41  L.  Ed.  1007,  17  Sup.  Ct.  540,  1  Fed.  Anti-Trust 
Dec.  648.     A  contract  between  thirty-two  carriers  to  maintain 


R  f^i  "^  1  Acts  Regulating  Commerce.  413 

rates  is  not  violative  of  section.  United  States  v.  Joint  Traffic 
Asso.,  76  Fed.  895,  1  Fed.  Anti-Trust  Dec.  615.  Affirmed,  89 
Fed.  1020,  32  C.  C.  A.  491,  45  U.  S.  App.  726,  1  Fed.  Anti-Trust 
Dec.  869.  Reversed,  holding  that  any  contract  restricting  com- 
petition in  interstate  trade  is  illegal.  United  States  v.  Joint 
Traffic  Asso.,  171  U.  S.  505,  43  L.  Ed.  259,  19  Sup.  Ct.  25,  1  Fed. 
Anti-Trust  Dec.  869.  Any  arrangement,  oral  or  otherwise,  re- 
sulting in  the  division  of  earnings  of  competing  carriers  is  il- 
legal and  violates  section.  Re  Pooling  Freights.  115  Fed.  588. 
Followed  Int.  Com.  Com.  v.  So.  Pac.  Co.,  132  Fed.  529,  839. 
Tonnage  pool  effective  by  initial  carrier  routing  freight  illegal. 
Int.  Com.  Com.  v.  So.  Pac.  Co.,  123  Fed.  597,  602,  132  Fed. 
829,  137  Fed.  606.  Reversed,  holding  that  practice  did  not  con- 
stitute a  pooling  agreement.  So.  Pac.  Co.  v.  Int.  Com.  Com., 
200  U.  S.  536,  50  L.  Ed.  585,  26  Sup.  Ct.  330.  Effect  on  rates 
of  a  combination  to  fix  rates.  Tift  v.  So.  Ry.  Co.,  138  Fed.  753, 
760,  761,  762,  763.  Affirmed.  So.  Ry.  Co.  v.  Tift,  206  U.  S. 
428,  51  L.  Ed.  1124,  27  Sup.  Ct.  709. 

§  513.  Carriers  shall  file,  print  and  keep  public  schedules  of 
rates. — That  every  public  carrier  subject  to  the  provisions  of 
this  act  shall  file  with  the  commission  created  by  this  act  and 
print  and  keep  open  to  public  inspection  schedules  showing  all 
the  rates,  fares  and  charges  for  transportation  between  different 
points  on  its  own  route  and  between  points  on  its  own  route  and 
points  on  the  route  of  any  other  carrier  by  railroad,  by  pipe 
line,  or  by  water  when  a  through  route  and  .joint  rate  have  been 
established.  If  no  joint  rate  over  the  through  route  has  been 
established,  the  several  carriers  in  such  through  route  shall  file, 
print,  and  keep,  open  to  public  inspection,  as  aforesaid,  the 
separately  established  rates,  fares  and  charges  applied  to  the 
through  transportation.  The  schedules  printed  as  aforesaid  by 
any  such  common  carrier  shall  plainly  state  the  places  between 
whieli  property  and  passengers  will  be  carried,  and  shall  con- 
tain the  classification  of  freight  in  force,  and  shall  also  state 
separately  all  terminal  charges,  storage  charges,  icing  charges, 
and  all  other  charges  which  the  commission  may  require,  all 
privileges  or  facilities  granted  or  allowed  and  any  rules  or  reg- 
ulations wbich  in  any  wise  change,  affect,  or  determine  any  part 
or  tlie  aggregate  of  such  aforesaid  rates,  fares  and  cliarges,  or 
the  value  of  the  service  rendered  to  the  passenger,  shipper  or 
consignee.     Such  schedules  shall  be  pl.'iiiily  printed  in  large  tyi)e. 


414  Acts  Eegulating  Commerce.  [§  513. 

and  copies  for  the  use  of  the  public  shall  be  kept  posted  in  two 
public  and  conspicuous  places  in  every  depot,  station,  or  office 
of  such  carrier  where  passengers  or  freight,  respectively,  are  re- 
ceived for  transportation,  in  such  form  that  they  shall  be  ac- 
cessible to  the  public  and  can  be  conveniently  inspected.  The 
provisions  of  this  section  shall  apply  to  all  traffic,  transportation 
and  facilities  defined  in  this  act. 

Paragraph  one,  section  six,  of  the  act  as  amended  June  29, 
1906.  For  the  original  act  and  the  act  of  March  2,  1889,  see 
post,  §  519. 

See  Tariff  Circular  15-A,  Pierce's  Digest,  685  et.  seq.,  as 
supplemented  by  Tariff  Circular  17-A,  for  regulations  with  ref- 
erence to  tiling  tariffs. 

One  member  of  a  traffic  association  may  file  tariffs  for  all. 
Re  Filing  Copies  of  Joint  Tariffs  by  Traffic  Combinations.  1  I. 
C.  R.  76.  Form  of  type  to  be  used.  Re  Rate  Sheets.  1  I.  C.  R. 
316.  Must  publish  tariffs  of  mileage  tickets.  Larrison  v.  Chi- 
cago &  G.  T.  R.  Co.,  1  I.  C.  C.  R.  147.  1  I.  C.  R.  369.  Re  Pub- 
lication of  Joint  Tariffs.  1  I.  C.  R.  598.  Local  tariffs  part  of 
a  through  tariff  and  export  tariffs  should  be  filed.  Re  Filing 
of  Joint  Tariffs.  1  I.  C.  C.  R.  657,  2  I.  C.  R.  9.  All  tariffs  should 
be  publicly  announced.  Re  Tariffs  of  the  Transcontinental 
Lines.  2  I.  C.  C.  R.  324,  2  I.  C.  R.  203.  Reduction  of  rate  with- 
out filing  tariff  showing  such  reduction  illegal.  Re  Passenger 
Tariffs  and  Rate  Wars.  2  I.  C.  C.  R.  513,  2  I.  C.  R.  340.  Meth- 
ods generally  adopted  in  substantial  compliance  with  law  suf- 
ficient. Re  Passenger  Tariffs.  2  I.  C.  C.  R.  649.  2  I.  C.  R.  445. 
Purpose  of  section.  Re  Atlanta  &  W.  P.  R.  Co.,  3  I.  C.  C.  R.  75, 
2  I.  C.  R.  480.  Foreign  carriers  engaged  in  transportation  from 
the  L^nited  States  to  an  adjacent  country  must  comply  with  sec- 
tion. Re  Investigation  of  Grand  Trunk  Railway.  3  I.  C.  C.  R. 
89,  2  I.  C.  R.  496.  On  shipments  intended  to  be  exported  by 
sea,  the  tariff  should  show  rate  to  place  of  export.  New  York 
Produce  Ex.  v.  New  York  C.  &  H.  R.  R.  Co..  3  I.  C.  C.  R.  137, 
2  I.  C.  R.  553.  Passenger  excursion  rates  must  be  published. 
Pittsburg  etc.  R.  Co.  v.  Baltimore  &  0.  R.  Co.,  3  I.  C.  C.  R.  465, 
2  I.  C.  R.  729.  Order  not  enforced  because  of  error  on  another 
point.  Int.  Com.  Com.  v.  B.  &  0.  R.  Co.,  43  Fed.  37,  3  I.  C.  R.  192, 
145  U.  S.  263,  36  L.  Ed.  699,  12  Sup.  Ct.  844.  Filing  of  schedules 
raises  no  presumption  as  to  the  legality  of  rates  set  out  therein. 
San  Bernardino  Board  of  Trade  v.  A.  T.  &  S.  F.  R.  Co.,  4  I.  C.  C. 


§  513.]  Acts  Regulating  Comaierce.  415 

R.  104,  3  I.  C.  R.  138.  Tariffs  on  imported  goods  should  be 
posted  at  the  port  of  entry  and  point  of  destination.  New  York 
Board  of  Trade  &  Transportation  v.  The  Penn.  R.  Co.,  4  I.  C.  C. 
R.  447,  3  I.  C.  R.  417.  Order  enforced.  Int.  Com.  Com.  v. 
Tex.  &  Pac.  Ry.  Co.,  52  Fed.  187,  57  Fed.  948,  6  C.  C.  A.  653,  20 
U.  S.  App.  1,  4  I.  C.  R.  408.  Reversed  on  another  ground. 
Tex.  &  Pae.  Ry.  Co.  v.  Int.  Com.  Com.,  162  U.  S.  197,  40  L.  Ed. 
940,  16  Sup.  Ct.  666.  Must  post  rates  whether  commodity  ex- 
ported or  not.  New  Orleans  Cotton  Ex.  v.  Louisville,  N.  0.  & 
Tex.  R.  Co.,  4  I.  C.  C.  R.  694,  3  I.  C.  R.  523.  A  joint  tariff 
must  show  on  its  face  what  roads  concur  therein.  Lehman- 
Higginson  &  Co.  v.  Tex.  &  Pac.  Ry.  Co.,  5  I.  C.  C.  R.  44,  3  I. 
C.  R.  706.  Two  rates  on  the  same  commodity  should  not  be  re- 
tained in  the  tariff  when  the  lower  rate,  ostensibly  is  for  a 
particular  class,  though  actually  open  to  all.  Duncan  v.  A.  T.  & 
S.  F.  R.  Co.,  6  I.  C.  C.  R.  85,  4  I.  C.  R.  385.  Section  and  its 
construction  discussed.  Re  Form  and  Contents  of  Rate  Sche- 
dules. 6  I.  C.  C.  R.  267,  4  I.  C.  R.  698.  Mere  designation  in  a 
circular  of  means  of  arriving  at  a  rate  not  sufficient.  Colorado 
Fuel  &  Iron  Co.  v.  So.  Pac.  Co.,  6  I.  C.  C.  R.  488,  518.  Order 
not  enforced.  So.  Pac.  Co.  v.  Colorado  F.  &  I.  Co.,  101  Fed. 
779,  42  C.  C.  A.  12.  To  use  a  corporation  o^^•ned  by  a  carrier 
to  transport  freight  at  other  than  the  published  rate  violates 
section.  Re  Alleged  Unlawful  Rates  and  Practices.  7  I.  C.  C. 
R.  33.  Posting  notice  that  tariffs  may  be  obtained  from  agent 
not  sufficient.  Rea  v.  I\I.  &  O.  R.  Co.,  7  I.  C.  C.  R.  43;  Johnson 
V.  Chicago,  St.  P.  etc.  Ry.  Co.,  9  I.  C.  C.  R.  221,  237.  Rules 
and  regulations  affecting  aggregate  of  rates  must  be  shown  in 
tariff.  Suffern,  Hunt  &  Co.  v.  Indiana  etc.  Ry.  Co.,  7  I.  C.  C. 
R.  255,  272,  278,  279;  American  Warehousemen's  Asso.  v.  111. 
Cent.  R.  Co.,  7  I.  C.  C.  R.  556.  Section  construed  with  refer- 
ence to  joint  rates.  New  York,  N.  H.  &  H.  v.  Piatt,  7  I.  C.  C. 
R.  323,  331.  Consolidated  Forwarding  Co.  v.  So.  Pac.  Co.,  9  I. 
C.  C.  R.  182.  Order  enforced.  Int.  Com.  Com.  v.  So.  Pac.  Co., 
132  Fed.  829.  Reversed.  So.  Pae.  Co.  v.  Int.  Com.  Com.,  200 
T^  S.  536,  50  L.  Ed.  585,  26  Sup.  Ct.  330.  Through  export  rates 
to  foreign  countries  need  not  be  shown,  it  is  sufficient  if  the  car- 
rier to  the  port  shows  its  proportion.  Kemble  v.  Boston  &  A. 
R.  Co.,  8  I.  C.  C.  R.J  10,  119.  But  where  the  through  rate  is 
made  by  joint  arrangement  between  the  rail  and  water  carrier 
it  must  1)0  pul)lished.     Re  Export  and  Domestic  Rates  on  Grain. 


416  Acts  Regulating  Commerce.  [§513. 

8  I.  C.  C.  R.  214,  276.  Re  Tariffs  on  Export  and  Import  Traffic. 
10  I.  C.  C.  R.  55,  63.  A  local  state  rate  part  of  a  through  rate 
must  be  published.  Re  Export  Rates  from  Points  East  and  West 
of  Mississippi  River.  8  I.  C.  C.  R.  185,  213.  Rules  and  regu- 
lations relating  to  storage  should  be  stated.  Penn.  Millers  State 
Asso.  V.  Philadelphia  &  R.  R.  Co.,  8  I.  C.  C.  R.  531,  560.  When 
rate  is  per  crate,  the  weight  or  dimensions  should  be  prescribed. 
Re  Alleged  Unlawful  Charges  for  Transportation  of  Vegetables. 
8  I.  C.  C.  R.  585.  Rates  referring  to  regulations  of  and  charges 
for  private  cars  must  be  published.  Carr  v.  N.  Pac.  Ry.  Co.,  9 
I.  C.  C.  R.  1,  15.  Tariff  should  show  division  to  tap  line  and 
privilege  of  milling  in  transit.  Central  Yellow  Pine  Asso.  v. 
Vicksburg  etc.  R.  Co.,  10  I.  C.  C.  R.  193.  Charges  for  refrigera- 
tion must  be  shown.  Re  Charges  for  Transportation  and  Re- 
frigeration of  Fruit.  10  I.  C.  C.  R.  360,  11  I.  C.  C.  R.  129.  Sec- 
tion violated.  Re  Alleged  Unlawful  Rates  and  Practices  in 
Transportation  of  Coal.  10  I.  C.  C.  R.  473,  484.  Tariffs  should 
be  simple  enough  to  be  understood  by  persons  of  ordinary  com- 
prehension. Pitts  V.  St.  L.  &  S.  F.  Ry.  Co.,  10  I.  C.  C.  R.  684. 
Tariffs  cannot  be  given  a  retroactive  effect.  Re  Through  Routes 
and  Through  Rates.  12  I.  C.  C.  R.  163.  Privilege  of  stopping 
in  traffic  to  sort,  etc.,  must  be  stated.  Shiel  &  Co.  v.  111.  Cent.  R. 
Co.,  12  I.  C.  C.  R.  210.  A  toll  charge  not  paid  should  not  be 
stated  in  tariff.  Pacific  Coast  Jobbers  &  Mfgrs.  Asso.  v.  So.  Pa. 
Co.,  12  I.  C.  C.  R.  319.  Mistake  of  agent  in  stating  rate  will 
not  relieve  from  tariff  rates.  Poor  v.  Chicago,  B.  &  Q.  Ry.  Co., 
12  I.  C.  C.  R.  418,  469,  citing  and  following  Texas  &  Pac.  Ry. 
Co.  V.  Mugg,  202  U.  S.  242,  50  L.  Ed.  1011,  26  Sup.  Ct.  628. 
Gulf  C.  &  S.  F.  Ry.  Co.  v.  Hefley,  158  U.  S.  98,  39  L.  Ed.  910, 
15  Sup.  Ct.  802.  See  recommendation  of  Int.  Com.  Com.  in  an- 
nual report  for  1908.  Carrier  making  delivery  at  its  cost  should 
so  state  in  tariff.  Schwager  &  Nettleton  v.  Great  N.  Ry.  Co., 
12  I.  C.  C.  R.  521.  Misleading,  unreasonable  or  impossible  con- 
ditions should  not  be  stated  in  tariffs.  Re  Released  Rates.  13 
I.  C.  C.  R.  556.  No  allowance  not  specified  in  tariffs  can  be  al- 
lowed. La  Salle  etc.  .R.  Co.  v.  Chicago  &  N.  W.  Ry.  Co.,  13  I. 
C.  C.  R.  610.  Tariff  filed  with  commission  binding  though  not 
posted.  Pueblo  Transportation  Asso.  v.  So.  Pac.  Co.,  14  I.  C.  C. 
R.  82.  Allowance  made  to  shippers  for  cost  of  car  door  boards 
must  be  stated.  Victor  Fuel  Co.  v.  A.  T.  &  S.  F.  Ry.  Co.,  14 
I.  C.  C.  R.  119.     So  must  reconsignment,  storage  and  all  other 


§  513.]  Acts  Eegulating  Commerce.  417 

privileges.  Folmer  &  Co.  v.  Great  N.  Ky.  Co.,  15  I.  C.  C.  R.  33, 
36.  Transportation  by  a  railroad  of  employees  of  express  com- 
panies engaged  along  the  line  of  the  railroad  need  not  show  in 
tariffs.  Re  Contracts  for  Free  Transportation.  16  I.  C.  C.  R. 
246,  249.  Tariffs  are  to  be  construed  by  their  language  and  not 
by  traffic  officials.  Newton  Gum.  Co.  v.  Chicago,  B.  &  Q.  R.  Co., 
16  I.  C.  C.  R.  341,  346.  Section  requires  the  filing  of  schedules, 
and  when  such  schedules  are  filed,  they  show  the  only  legal  rates. 
Kinnavey  v.  Terminal  R.  Asso.  of  St.  Louis,  81  Fed.  802.  A  re- 
ceiver of  a  railroad  is  not  bound  by  a  tariff  filed  before  his  ap- 
pointment and  which  he  has  not  ratified.  United  States  v.  De 
Coursey,  82  Fed.  302.  When  a  higher  rate  is  charged  than  the 
rate  given  the  shipper,  because  of  misrouting,  the  shipper  can 
recover  the  difference  between  the  rate  given  him  and  the  one 
he  was  compelled  to  pay.  Pond-Decker  Lumber  Co.  v.  Spencer, 
86  Fed.  846,  849,  30  C.  C.  A.  430.  reversing  81  Fed.  277.  Sec- 
tion discussed.  United  States  v.  Wood,  142  Fed.  405,  408,  409. 
The  purpose  of  publication  is  that  the  shipper  may  know  not 
only  what  he  but  also  what  his  competitor  must  pay.  United 
States  V.  Chicago  &  A.  Ry.  Co.,  148  Fed.  646,  648,  Assumed, 
without  a  definite  discussion,  that  icing  charges  may  be  stated 
separately  in  schedules.  Knudsen-Ferguson  Fruit  Co.  v.  Llicli. 
Cent.  R.  Co.,  148  Fed.  968,  971.  Shipment  of  goods  on  through 
bill  of  lading  from  United  States  to  a  foreign  coimtry  subject 
to  the  requirements  of  the  section.  Armour  Packing  Co.  v. 
United  States,  153  Fed.  1,  10,  82  C.  C.  A.  135,  14  L.  R.  A. 
(N.  S.)  400.  Affirmed.  209  U.  S.  56,  52  L.  Ed.  681,  28  Sup. 
Ct.  428.  Cannot  evade  section  when  tariffs  show  a  through 
route  by  transporting  property  over  another  route.  United 
States  V.  Vacuum  Oil  Co.,  153  Fed.  598.  A  provision  in  a  pas- 
senger ticket  not  shown  in  the  schedule  is  unlawful  and  void. 
Baltimore  &  0.  R.  Co.  v.  Hamburger,  155  Fed.  849.  When  a 
schedule  of  rates  includes  a  charge  over  private  tracks,  such 
charge  must  be  collected.  Chicago  &  A.  Ry.  Co.  v.  United 
States,  156  Fed.  558,  84  C.  C.  A.  324,  affirming  148  Fed.  646. 
So  also  with  reference  to  an  elevator  charge  and  no  defense  that 
such  payment  had  to  be  made  to  get  the  business.  Chicago,  St. 
P.,  M.  &  0.  Ry.  Co.  V.  United  States,  162  Fed.  835,  C.  C.  A. 
,  affirming  United  States  v.  Chicago,  St.  P.,  M.  &  0.  Ry.  Co., 
151  Fed.  84.  The  legality  of  a  terminal  charge  separately  stated 
must  be  determined  by  itself  and  without  reference  to  the  total 


418  Acts  Regulating  Commerce.  [§  514. 

charge  for  the  through  movement.  Stiekncy  v.  Int.  Com.  Com., 
164  Fed.  638.  A  mistake  in  quoting  a  published  rate  does  not 
justify  a  deviation  therefrom.  Gulf,  Col.  &  S.  F.  Ry.  Co.  v. 
Ilefiey,  158  U.  S.  98,  39  L.  Ed.  910,  15  Sup.  Ct.  802 ;  Texas  & 
Pac.  Ry.  Co.  v.  Mugg,  202  U.  S.  242,  50  L.  Ed.  1011,  26  Sup. 
Ct.  628;  Texas  &  Pac.  Ry.  Co.  v.  Abilene  Cotton  Oil  Co.,  204 
U.  S.  426,  444,  51  L.  Ed.  553,  560,  561,  27  Sup.  Ct.  350.  Free 
cartage  furnished  openly  and  notoriously  for  a  quarter  of  a 
century  need  not  be  stated  prior  to  act  June  29,  1906,  in  ab- 
sence of  a  requirement  of  the  commission  therefor.  Int.  Com. 
Com.  v.  Detroit,  G.  H.  &  M.  Ry.  Co.,  167  U.  S.  633,  42  L.  Ed. 
306,  17  Sup.  Ct.  986.  IMay  under  this  section  make  a  distinct 
charge  for  the  terminal  road  when  separately  stated  in  tariffs. 
Int.  Com.  Com.  v.  Chicago,  B.  &  Q.  R.  Co.,  186  U.  S.  320,  46  L. 
Ed.  1182,  22  Sup.  Ct.  824.  Nothing  in  section  prevents  the 
initial  carrier  from  retaining  the  right  to  route  freight.  So.  Pac. 
Co.  v.  Int.  Com.  Com.,  20.0  U.  S.  536,  50  L.  Ed.  585,  26  Sup.  Ct. 
330.  Rates  are  established  when  filed  with  Interstate  Commerce 
Commission  though  not  posted.  Tex.  &  Pac.  Ry.  Co.  v.  Cisco 
Oil  i\rill,  204  IT.  S.  449,  51  L.  Ed.  562,  27  Sup.  Ct.  358. 

§  514.  Regulations  as  to  printing  and  posting  schedules  of 
rates  for  freight  moving  through  foreign  countries  from  and  to 
any  place  in  the  United  States. — Any  common  carrier  subject  to 
the  provisions  of  this  act  receiving  freight  in  the  United  States 
to  be  carried  through  a  foreign  country  to  any  place  in  the 
United  States  shall  also  in  like  manner  print  and  keep  open  to 
public  inspection,  at  every  depot  or  office  where  such  freight 
is  received  for  shipment,  schedules  showing  the  through  rates 
established  and  charged  by  such  common  carrier  to  all  points  in 
the  United  States  beyond  the  foreign  country  to  which  it  ac- 
cepts freight  for  shipment;  and  any  freight  shipped  from  the 
United  States  through  a  foreign  country  into  the  United  States 
the  through  rate  on  which  shall  not  have  been  made  public,  as 
required  by  this  act,  shall,  before  it  is  admitted  into  the  United 
States  from  said  foreign  country,  be  subject  to  customs  duties 
as  if  said  freight  were  of  foreign  production. 

Paragraph  two  of  section  six.  Paragraph  as  originally  enact- 
ed.    For  annotations  see  next  preceding  section. 

§  515.  No  change  of  schedules  of  rates  shall  be  made  without 
notice. — Xo  change  shall  be  made  in  the  rates,  fares,  and  charges, 
or  joint  rates,  fares,  and  charges,  which  have  been  filed  and 


§  516.]  Acts  Regulating  Commerce.  419 

published  by  any  common  carrier  in  compliance  with  the  re- 
quirements of  this  section,  except  after  thirty  clays'  notice  to  the 
commission  and  to  the  public  published  as  aforesaid,  ^Yhich  shall 
plainly  state  the  changes  proposed  to  be  made  in  the  schedule 
then  in  force  and  the  time  when  the  changed  rates,  fares,  or 
charges  will  go  into  effect;  and  the  proposed  changes  shall  be 
sho\ATi  by  printing  new  schedules,  or  shall  be  plainly  indicated 
upon  the  schedules  in  force  at  the  time  and  kept  open  to  public 
inspection :  Provided,  That  the  commission  may,  in  its  discre- 
tion and  for  good  cause  shown,  allow  changes  upon  less  than 
the  notice  herein  specified,  or  modify  the  requirements  of  this 
section  in  respect  to  publishing,  posting  and  filing  tariffs,  either 
in  particular  instances  or  by  a  general  order  applicable  to  spe- 
cial or  peculiar  circumstances  or  conditions. 

Paragraph  three  of  section  six  as  amended  by  act  June  29, 
1906.    For  the  original  act  of  March  2,  1889  see  post,  §  519. 

For  administrative  rulings,  see  tariff  circulars  15-A  and  16-A, 
Pierce's  Digest,  685  et.  seq.,  as  supplemented  by  tariff  circular 
17-A,  and  conference  rulings  id.  789  et.  seq.  Time  to  be  com- 
puted from  day  that  notice  reaches  the  office  of  commission. 
Circular  March  23,  1889,  2  I.  C.  C.  R.  656.  Export  rates  can 
not  be  varied  from  day  to  day  to  meet  fluctuation.  New  York 
Produce  Ex.  v.  New  York  C.  &  H.  R.  R.  Co.,  3  I.  C.  C.  R.  137, 
2  I.  C.  R.  553. 

§  516.  Names  of  all  carriers  parties  to  schedules  must  be 
specified. — The  names  of  the  several  carriers  which  are  parties  to 
any  joint  tariff  shall  be  specified  therein,  and  each  of  the  parties 
thereto,  other  than  the  one  filing  the  same,  shall  file  with  the 
commission  such  evidence  of  concurrence  therein  or  acceptance 
thereof  as  may  be  required  or  approved  by  the  commission,  and 
where  such  evidence  of  concurrence  or  acceptance  is  filed  it  shall 
not  be  necessary  for  the  carriers  filing  the  same  to  also  file  copies 
of  the  tariffs  in  which  they  are  named  as  parties. 

New  paragraph  of  section  six  added  by  act  June  29,  1906. 

Evidence  of  an  agreement  to  a  joint  tariff  should  be  a  matter 
of  record.  Re  Form  and  Contents  of  Rate  Schedules.  6  I.  C.  C. 
R.  267,  279,  4  I.  C.  R.  698,  702.  Joint  rate  can  only  be  made  by 
concurrence  or  assent.  New  York,  N.  H.  &  IT.  R.  Co.  v.  Piatt, 
7  I.  C.  C.  R.  323.  333. 

§  517.  Carriers  shall  file  contracts  relating  to  traffic  arrange- 
ments.— Every  common  carrier  subject  to  this  act  shall  also  file 


420  Acts  Regulating  Commerce.  [§  518. 

with  said  coniniission  copies  of  all  contracts,  agreements,  or  ar- 
rangements* with  other  common  carriers  in  relation  to  any  traf- 
fic affected  by  the  provisions  of  this  act  to  which  it  may  be  a 
party. 

Paragraph  five  of  section  six  substantially  as  in  original  act, 
the  words  "subject  to  this  act"  being  added  by  act  June  29, 
1906. 

Contracts  and  agreements  for  joint  rates  must  be  filed.  §  59, 
tariff  circular  15-A,  as  supplemented  by  tariff  circular  17-A. 
So  must  carriers'  contracts -for  telephone  and  telegraph  service, 
id.  64.  Express  companies  must  file  contracts  for  joint  rates. 
Tariff  circular  16-A,  §  32. 

§  518.  Commission  may  prescribe  form  of  schedules. — The 
commission  may  determine  and  prescribe  the  form  in  which  the 
schedules  required  by  this  section  to  be  kept  open  to  public  in- 
spection shall  be  prepared  and  arranged  and  may  change  the 
form  from  time  to  time  as  shall  be  found  expedient. 

Paragraph  six,  section  six,  of  present  act,  added  ]\Iarch  2, 
1889. 

Tariff  schedules  15-A,  16-A  and  17-A,  are  issued  by  the  Inter- 
state Commerce  Commission  under  authority  of  this  paragraph. 
Pierce's  Digest  685  to  805.  Charges  should  be  clearly  and  defi- 
nitely stated  so  that  the  public  can  easily  determine  the  rate. 
Colorado  Fuel  and  Iron  Co.  v.  So.  Pac.  Co.,  6  I.  C.  C.  R.  488, 
518. 

§  519.  No  carrier  shall  participate  in  interstate  commerce  un- 
less the  charges  therefor  are  published,  and  no  such  carrier  shall 
deviate  from  the  published  schedules. — No  carrier,  unless  other- 
wise provided  by  this  act,  shall  engage  or  participate  in  the 
transportation  of  passengers  or  property,  as  defined  in  this  act, 
unless  the  rates,  fares,  and  charges  upon  which  the  same  are 
transported  by  said  carrier  have  been  filed  and  published  in  ac- 
cordance with  the  provisions  of  this  act ;  nor  shall  any  carrier 
charge  or  demand  or  collect  or  receive  a  greater  or  less  or  dif- 
ferent compensation  for  such  transportation  of  passengers  or 
property,  or  for  any  service  in  connection  therewith,  between  the 
points  named  in  such  tariffs  than  the  rates,  fares,  and  charges 
which  are  specified  in  the  tariff  filed  and  in  effect  at  the  time; 
nor  shall  any  carrier  refund  or  remit  in  any  manner  or  by  any 
device  any  portion  of  the  rates,  fares,  and  charges  so  specified, 
nor  extend  to  any  shipper  or  person  any  privileges  or  facilities 


§  519.]  Acts  Regulating  Commerce.  421 

in  the  transportation  of  passengers  or  propertj^  except  such  as 
are  specified  in  such  tariffs :  Provided,  That  wherever  the  word 
"carrier"  occurs  in  this  act  it  shall  be  held  to  mean  ''common 
carrier. ' ' 

Paragraph  seven  of  section  six,  being  amended  by  acts  of 
June  29,  1906  and  March  2,  1889. 

Section  six  of  the  original  act  read : 

"That  every  common  carrier  subject  to  the  provisions  of  this 
act  shall  print  and  keep  for  public  inspection  schedules  show- 
ing the  rates  and  fares  and  charges  for  the  transportation  of 
passengers  and  property  which  any  such  common  carrier  has  es- 
tablished and  which  are  in  force  at  the  time  upon  its  railroad, 
as  defined  by  the  first  section  of  this  act.  The  schedules  printed 
as  aforesaid  by  any  such  common  carrier  shall  plainly  state  the 
places  upon  its  railroad  between  which  property  and  passengers 
will  be  carried  and  shall  contain  the  classification  of  freight  in 
force  upon  such  railroad,  and  shall  also  state  separately  the 
terminal  charges  and  any  rules  or  regulations  which  in  any  wise 
change,  effect  or  determine  any  part  or  the  aggregate  of  such 
aforesaid  rates  and  fares  and  charges.  Such  schedules  shall  be 
plainly  printed  in  large  type,  of  at  least  the  size  of  ordinary 
pica,  and  copies  for  the  use  of  the  public  shall  be  kept  in  every 
depot  or  station  upon  anj'  such  railroad,  in  such  places  and  in 
such  form  that  they  can  be  conveniently  inspected. 

"Any  common  carrier  subject  to  the  provisions  of  this  act  re- 
ceiving freight  in  the  United  States  to  be  carried  through  a  for- 
eign country  to  any  place  in  the  United  States  shall  also  in  like 
manner  print  and  keep  for  public  inspection,  at  every  depot 
where  such  freight  is  received  for  shipment,  schedules  showing 
the  through  rates  established  and  charged  by  such  common  car- 
rier to  all  points  in  the  United  States  bej^ond  the  foreign  coun- 
try to  which  it  accepts  freight  for  shipment;  and  any  freight 
shipped  from  the  United  States  through  a  foreign  country  into 
the  United  States,  the  through  rate  on  which  shall  not  have 
been  made  public  as  required  by  this  act,  shall,  before  it  is  ad- 
mitted into  the  United  States  from  said  foreign  country,  be  sub- 
ject to  customs  duties  as  if  said  freight  were  of  foreign  pro- 
duction ;  and  any  law  in  conflict  willi  this  section  is  liereliy  re- 
pealed. 

"Xo  advance  sh;ill  be  made  in  the  rates,  fares  and  charges 
which  have  been  established  and  published  as  aforesaid  by  any 


422  Acts  Regulating  Commerce.  [§  519. 

common  carrier  in  compliance  with  the  requirements  of  this 
section,  except  after  ten  days'  public  notice,  which  shall  plainly 
state  the  changes  proposed  to  be  made  in  the  schedule  then  in 
force,  and  the  time  when  the  increased  rates,  fares,  or  charges 
will  go  into  effect ;  and  the  proposed  changes  shall  be  shown  by 
printing  new  schedules,  or  shall  be  plainly  indicated  upon  the 
schedules  in  force  at  the  time  and  kept  for  public  inspection. 
Reductions  in  such  published  rates,  fares,  or  charges  may  be 
made  without  previous  notice;  but  whenever  any  such  reduc- 
tion is  made,  notice  of  the  same  shall  immediatelj^  be  publicly 
posted  and  the  changes  made  shall  immediately  be  plainly  in- 
dicated upon  the  schedules  at  the  time  in  force  and  kept  for  pub- 
lic inspection. 

"And  when  any  such  common  carrier  shall  have  established 
and  published  its  rates,  fares,  and  charges  in  compliance  with 
the  provisions  of  tliis  section,  it  shall  be  unlawful  for  such  com- 
mon carrier  to  charge,  demand,  collect,  or  receive  from  any  per- 
son or  persons  a  greater  or  less  compensation  for  the  transporta- 
tion of  passengers  or  property,  or  for  any  service  in  connection 
therewith,  than  is  specified  in  such  published  schedule  of  rates, 
fares,  and  charges  as  may  at  the  time  be  in  force. 

''Every  common  carrier  subject  to  the  provisions  of  this  act 
shall  file  with  the  commission  hereinafter  provided  for  copies  of 
its  schedules  of  rates,  fares,  and  charges  which  have  been  es- 
tablished and  published  in  compliance  with  the  requirements  of 
this  section,  and  shall  promptly  notify  said  commission  of  all 
changes  made  in  the  same.  Every  such  common  carrier  shall 
also  file  with  said  commission  copies  of  all  contracts,  agreements, 
or  arrangements  with  other  common  carriers  in  relation  to  any 
traffic  affected  by  the  provisions  of  this  act  to  which  it  may  be 
a  party.  And  in  cases  where  passengers  and  freight  pass  over 
continuous  lines  or  routes  operated  by  more  than  one  common 
carrier,  and  the  several  common  carriers  operating  such  lines 
or  routes  establish  joint  tariffs  of  rates  or  fares  or  charges  for 
such  continuous  lines  or  routes,  copies  of  such  joint  tariffs  shall 
also,  in  like  manner,  be  filed  with  said  commission.  Such  joint 
rates,  fares,  and  charges  on  such  continuous  lines  so  filed  as 
aforesaid  shall  be  made  public  by  such  common  carriers  when 
directed  by  said  commission,  in  so  far  as  may,  in  the  judgment 
of  the  commission,  be  deemed  practicable;  and  said  commission 
shall  from  time  to  ti]ne  prescribe  the  measure  of  publicity  which 


§  519.]  Acts  Eegulating  Commerce.  423 

shall  be  given  to  such  rates,  fares,  and  charges,  or  to  such  part 
of  them  as  it  may  deem  practicable  for  such  common  carriers  to 
publish,  and  the  places  in  which  they  shall  be  published ;  but  no 
common  carrier  party  to  any  such  joint  tariff  shall  be  liable  for 
the  failure  of  any  other  common  carrier  party  thereto  to  observe 
and  adhere  to  the  rates,  fares,  or  charges  thus  made  and  pub- 
lished. 

"If  any  such  common  carrier  shall  neglect  or  refuse  to  file  or 
publish  its  schedules  or  tariffs  of  rates,  fares,  and  charges  as 
provided  in  this  section,  or  any  part  of  the  same,  such  common 
carrier  shall,  in  addition  to  other  penalties  herein  prescribed,  be 
subject  to  a  writ  of  mandamus,  to  be  issued  by  any  circuit  court 
of  the  United  States  in  the  judicial  district  wherein  the  prin- 
cipal office  of  said  cormnon  carrier  is  situated  or  wherein  such 
offense  may  be  committed,  and  if  such  common  carrier  be  a  for- 
eign corporation,  in  the  judicial  circuit  wherein  such  common 
carrier  accepts  traffic  and  has  an  agent  to  perform  such  service, 
to  compel  compliance  with  the  aforesaid  provisions  of  this  sec- 
tion ;  and  such  writ  shall  issue  in  the  name  of  the  people  of  the 
United  States,  at  the  relation  of  the  commissioners  appointed 
under  the  provisions  of  this  act ;  and  failure  to  comply  with  its 
requirements  shall  be  punishable  as  and  for  a  contempt;  and 
the  said  commissioners,  as  complainants,  may  also  apply,  in  any 
such  circuit  court  of  the  United  States,  for  a  writ  of  injunction 
against  such  common  carrier,  to  restrain  such  common  carrier 
from  receiving  or  transporting  property  among  the  several 
states  and  territories  of  the  United  States,  or  between  the  United 
States  and  adjacent  foreign  coimtries,  or  between  ports  of  trans- 
shipment and  of  entry  and  the  several  states  and  territories  of 
the  United  States,  as  mentioned  in  the  first  section  of  this  act, 
until  such  common  carrier  shall  have  complied  with  the  afore- 
said provisions  of  this  section  of  this  act." 
Section  six  of  the  act  of  March  2,  1889,  read : 
"That  every  common  carrier  subject  to  the  provisions  of  this 
act  shall  print  and  keep  open  to  public  inspection  schedules 
showing  the  rates  and  fares  and  charges  for  the  transportation  of 
passengers  and  property  which  any  common  carrier  has  estab- 
lished and  which  are  in  force  at  the  time  upon  its  route.  The 
schedules  printed  as  aforesaid  by  any  such  common  carrier  shall 
plainly  state  the  places  upon  its  railroad  between  which  prop- 
erty and  passengers  will  be  carried,  and  shall  contain  the  class!- 


424  Acts  Regulating  Commerce.  [§  519. 

fication  of  freight  in  force,  and  shall  also  state  separately  the 
terminal  charges  and  any  rules  or  regulations  which  in  any  wise 
change,  affect,  or  determine  any  part  or  the  aggregate  of  such 
aforesaid  rates  and  fares  and  charges.  Such  schedules  shall  be 
plainly  printed  in  large  type,  and  copies  for  the  use  of  the  pub- 
lie  shall  be  posted  in  two  public  and  conspicuous  places,  in 
every  depot,  station,  or  office  of  such  carrier  w'here  passengers 
or  freight,  respectively,  are  received  for  transportation,  in  such 
form  that  they  shall  be  accessible  to  the  public  and  can  be  con- 
veniently inspected. 

"Any  common  carrier  subject  to  the  provisions  of  this  act  re- 
ceiving freight  in  the  United  States  to  be  carried  through  a  for- 
eign country  to  any  place  in  the  United  States  shall  also  in 
like  manner  print  and  keep  open  to  public  inspection,  at  every 
depot  or  office  where  such  freight  is  received  for  shipment,  sche- 
dules showing  the  through  rates  established  and  charged  by 
such  common  carrier  to  all  points  in  the  United  States  beyond, 
the  foreign  country  to  which  it  accepts  freight  for  shipment; 
and  any  freight  shipped  from  the  United  States  through  a  for- 
eign country  into  the  United  States,  the  through  rate  on  which 
shall  not  have  been  made  public  as  required  by  this  act,  shall, 
before  it  is  admitted  into  the  United  States  from  said  foreign 
country,  be  subject  to  customs  duties  as  if  said  freight  were  of 
foreign  production ;  and  any  law  in  conflict  with  this  section  is 
hereby  repealed. 

"No  advance  shall  be  made  in  the  rates,  fares,  and  charges 
which  have  been  established  and  published  as  aforesaid  by  any 
common  carrier  in  compliance  with  the  requirements  of  this 
section,  except  after  ten  days'  public  notice,  which  shall  plainly 
state  the  changes  proposed  to  be  made  in  the  schedule  then  in 
force,  and  the  time  when  the  increased  rates,  fares,  or  charges 
will  go  into  effect;  and  the  proposed  changes  shall  be  shown  by 
printing  new  schedules,  or  shall  be  plainly  indicated  upon  the 
schedules  in  force  at  the  time  and  kept  open  to  public  inspection. 
Reductions  in  such  published  rates,  fares  or  charges  shall  only 
be  made  after  three  days'  previous  public  notice,  to  be  given 
in  the  same  manner  that  notice  of  an  advance  in  rates  must  be 
given. 

"And  Avhen  any  such  common  carrier  shall  have  established 
and  published  its  rates,  fares  and  charges  in  compliance  with 
the  provisions  of  this  section,  it  shall  be  unlawful  for  such  com- 


§  519.]  Acts  Regulating  Commerce.  425 

mon  carrier  to  charge,  demand,  or  receive  from  any  person  or 
persons  a  greater  or  less  compensation  for  the  transportation  of 
passengers  or  property,  or  for  any  services  in  connection  there- 
with, than  is  specified  in  such  published  schedule  of  rates,  fares, 
and  charges  as  may  at  the  time  be  in  force. 

"Every  common  carrier  subject  to  the  provisions  of  this  act 
shall  file  with  the  commission  hereinafter  provided  for  copies 
of  its  schedules  of  rates,  fares,  and  charges  which  have  been 
established  and  published  in  compliance  with  the  requirements 
of  this  section,  and  shall  promptly  notify  said  commission  of  all 
changes  made  in  the  same.  Every  such  common  carrier  shall 
also  file  with  said  commission  copies  of  all  contracts,  agreements, 
or  arrangements  with  other  common  carriers  in  relation  to  any 
traffic  affected  by  the  provisions  of  this  act  to  which  it  may  be 
a  party.  And  in  cases  where  passengers  and  freight  pass  over 
continuous  lines  or  routes  operated  by  more  than  one  common 
carrier,  and  the  several  common  carriers  operating  such  lines  or 
routes  establish  joint  tariffs  of  rates  or  fares  or  charges  for  such 
continuous  lines  or  routes,  copies  of  such  joint  tariffs  shall  also, 
in  like  manner,  be  filed  with  said  commission.  Such  joint  rates, 
fares,  and  charges  on  such  continuous  lines  so  filed  as  aforesaid 
shall  be  made  public  by  such  common  carriers  when  directed  by 
said  commission,  in  so  far  as  may,  in  the  judgment  of  the  com- 
mission, be  deemed  practicable;  and  said  commission  shall  from 
time  to  time  prescribe  the  measure  of  publicity  which  shall  be 
given  to  such  rates,  fares,  and  charges,  or  to  such  part  of  them 
as  it  may  deem  practicable  for  such  common  carrier  to  publish, 
and  the  places  in  which  they  shall  be  published. 

"No  advance  shall  be  made  in  joint  rates,  fares,  and  charges, 
shown  upon  joint  tariffs,  except  after  ten  days'  notice  to  the 
commission,  which  shall  plainly  state  the  changes  proposed  to 
be  made  in  the  schedules  then  in  force,  and  the  time  when  the 
increased  rates,  fares,  or  charges  will  go  into  effect.  No  reduc- 
tion shall  be  made  in  joint  rates,  fares,  and  charges,  except  after 
three  days'  notice,  to  be  given  to  the  commission  as  is  above 
provided  in  the  case  of  an  advance  of  joint  rates.  The  com- 
mission may  make  public  such  proposed  advances,  or  such  re- 
ductions, in  such  manner  as  may,  in  its  judgment,  be  deemed 
practical,  and  may  prescribe  from  time  to  time  the  measure  of 
publicity  which  common  carriers  shall  give  to  advances  or  re- 
ductions in  joint  tariffs. 


426  Acts  Eegulating  Commerce.  [§  519. 

''It  shall  be  unlawful  for  an}^  common  carrier,  party  to  any 
joint  tariff,  to  charge,  demand,  collect,  or  receive  from  any  per- 
son or  persons  a  greater  or  less  compensation  for  the  transporta- 
tion of  persons  or  property,  or  for  any  services  in  connection 
therewith,  between  any  points  as  to  which  a  joint  rate,  fare,  or 
charge  is  named  thereon,  than  is  specified  in  the  schedule  filed 
with  the  conmiission  in  force  at  the  time. 

"The  commission  may  determine  and  prescribe  the  form  in 
which  the  schedules  required  by  this  section  to  be  kept  open  to 
public  inspection  shall  be  prepared  and  arranged,  and  may 
change  the  form  from  time  to  time  as  shall  be  found  expedient. 

"If  any  such  common  carrier  shall  neglect  or  refuse  to  tilb 
or  publish  its  schedules  or  tariffs  of  rates,  fares,  and  charges 
as  provided  in  this  section,  or  any  part  of  the  same,  such  com- 
mon carrier  shall,  in  addition  to  other  penalties  herein  pre- 
scribed, be  subject  to  a  writ  of  mandamus,  to  be  issued  by  any 
circuit  court  of  the  United  States  in  the  judicial  district  wherein 
the  principal  office  of  said  common  carrier  is  situated,  or  wherein 
such  offense  may  be  committed,  and  if  such  common  carrier  be  a 
foreign  corporation  in  the  judicial  circuit  wlierein  such  common 
carrier  accepts  traffic  and  has  an  agent  to  perform  such  ser- 
vice, to  compel  compliance  w-ith  the  aforesaid  provisions  of  this 
section ;  and  such  writ  shall  issue  in  the  name  of  the  people  of 
the  United  States,  at  the  relation  of  the  commissioners  appointed 
under  the  provisions  of  this  act ;  and  the  failure  to  comply  with 
its  requirements  shall  be  punishable  as  and  for  a  contempt ;  and 
the  said  commissioners,  as  complainants,  may  also  apply,  in  any 
such  circuit  court  of  the  United  States,  for  a  writ  of  injimction 
against  such  common  carrier,  to  restrain  such  common  carrier 
from  receiving  or  transporting  property  among  the  several 
states  and  territories  of  the  United  States,  or  between  the  United 
States  and  adjacent  foreign  countries,  or  between  ports  of  trans- 
shipment and  of  entry  and  the  several  states  and  territories  of 
the  United  States,  as  mentioned  in  the  first  section  of  this  act, 
until  such  common  carrier  shall  have  complied  with  the  aforesaid 
provisions  of  this  section  of  this  act." 

See  annotations,  supra,  under  other  paragraphs  of  section  six 
of  the  Act  to  Regulate  Commerce. 

Reductions  in  passenger  rates  should  not  be  made  without  a 
change  showing  such  reductions  in  the  tariffs.  Re  Passenger 
Tariffs  and  Rate  Wars.    2  I.  C.  C.  R.  513,  2  I.  C.  R.  340.    When 


Acts  Regt'latixg  Commerce.  427 

no  joint  rates  are  published,  the  combination  of  the  locals  is  the 
legal  rate.  Ee  Passenger  Tariffs.  2  I.  C.  C.  K.  649,  2  I.  C.  R. 
445;  Lehman,  Higginson  &  Co.  v.  Tex.  &  Pac.  R.  Co.,  5  I.  C. 
C.  R.  44,  3  I.  C.  R.  706.  A  carrier  must  collect  its  local  rate 
unless  it  has  joined  in  a  joint  tariff.  New  York,  N.  H.  &  H.  R. 
Co.  V.  Piatt,  7  I.  C.  C.  R.  323.  All  rules  and  regulations  affect- 
ing rates  should  show  on  the  tariffs.  Spillers  &  Co.  v.  L.  & 
N.  R.  Co.,  8  I.  C.  C.  R.  364.  Tariffs  can  not  be  given  a  retro- 
active effect.  Re  Through  Routes  and  Through  Rates.  12  I.  C. 
C.  R.  163.  JMistake  of  agent  in  giving  rate  will  not  justify 
deviation  from  tariff  rate.  Poor  Grain  Co.  v.  C,  B.  &  Q.  Ry. 
Co.,  12  I.  C.  C.  R.  418,  421  and  469,  citing  Gulf,  C.  &  S.  F.  Ry. 
Co.  V.  Hefiey,  158  U.  S.  98,  39  L.  Ed.  910,  15  Sup.  Ct.  802;  Tex. 
&  Pac.  Ry.  Co.  v.  Mugg,  202  U.  S.  242,  50  L.  Ed.  1011,  26  Sup. 
Ct.  628.  The  through  rate  shown  by  the  tariff  is  the  lawful  rate 
for  a  through  shipment,  although  the  combination  of  locals  is 
less.  Morgan  v.  M.  K.  &  T.  Ry.  Co.,  12  I.  C.  C.  R.  525.  Section 
construed  and  statement  made  of  what  an  indictment  for  its 
violation  should  contain.  United  States  v.  Penn.  R.  Co.,  153 
Fed.  625;  United  States  v.  New  York  C.  &  H.  R.  R.  Co.',  153 
Fed.  630.  Act  not  unconstitutional  because  published  rate  fixed 
as  legal  rate.  United  States  v.  Standard  Oil  Co.,  of  Indiana, 
155  Fed.  305.  Reversed  on  other  groimds.  Standard  Oil  Co.  of 
Indiana  v.  United  States,  164  Fed.  376 ;  see  also  United  States 
V.  Vacuum  Oil  Co.,  158  Fed.  536. 

§  520.  Preference  and  precedence  may  be  given  military  traffic 
in  time  of  war.— That  in  time  of  war  or  threatened  war  prefer- 
ence and  precedence  shall,  upon  the  demand  of  the  President  of 
the  United  States,  be  given,  over  all  other  traffic,  to  the  trans- 
portation of  troops  and  material  of  war,  and  carriers  shall  adopt 
every  means  within  their  control  to  facilitate  and  expedite  the 
military  traffic. 

A  new  paragraph,  paragraph  eight,  added  to  section  six  by 
Act  Jime  29,  3906. 

§  521.  Corporations  violating  the  act  to  regulate  commerce 
guilty  as  individuals  and  punishment  prescribed.— Tluit  anything 
done  or  omitted  to  be  done  by  a  corporation  common  carrier, 
subject  to  the  act  to  regulate  commerce  and  the  acts  amendatory 
thereof,  which,  if  done  or  omitted  to  be  done  by  any  director  or 
officer  thereof,  or  any  receiver,  trustee,  lessee,  agent,  or  person 
acting  for  or  employed  by  such  corporation,  would  constitute  a 


428  Acts  Regulating  Commerce.  [§522. 

misdemeanor  under  said  acts  or  under  this  act,  shall  also  be  held 
to  be  a  misdemeanor  committed  by  such  corporation,  and  upon 
conviction  thereof  it  shall  be  subject  to  like  penalties  as  are  pre- 
scribed in  said  acts  or  by  this  act  with  reference  to  such  persons, 
except  as  such  penalties  are  herein  changed.  The  wilful  failure 
upon  the  part  of  any  carrier  subject  to  said  acts  to  file  and  pub- 
lish the  tariffs  of  rates  and  charges  as  required  by  said  acts,  or 
strictly  to  observe  such  tariffs  until  changed  according  to  law, 
shall  be  a  misdemeanor,  and  upon  conviction  thereof  the  cor- 
poration offending  shall  be  subject  to  a  fine  of  not  less  than  one 
thousand  dollars  nor  more  than  twenty  thousand  dollars  for  each 
offense. 

First  part  of  section  one.  Act  February  19,  1903,  known  as  the 
''Elkins  Act." 

Prior  to  this  act  onh^  the  agents  of  the  corporations  could  be 
guilt}^  of  criminal  offenses  against  the  act  to  regulate  commerce. 
United  States  v.  Milwaukee  Refrigerator  Transit  So.,  142  Fed. 
247,  249.  A  carrier  and  its  agents  may  be  prosecuted  under  the 
same  indictment.  United  States  v.  New  York  C.  &  H.  R.  R.  Co., 
146  Fed.  298.  Affirmed  by  the  Supreme  Court,  holding  that  the 
act  was  not  unconstitutional  in  imputing  to  a  corporation  a  crim- 
inal offense.  New  York  C.  &  H.  R.  R.  Co.  v.  United  States,  212 
U.  S.  481,  53  L.  Ed.        ,  29  Sup.  Ct.  304. 

§  522.  Rebate.  Punishment  for  offering-,  granting,  soliciting 
or  accepting. — And  it  shall  be  unlawful  for  any  person,  persons, 
or  corporation  to  offer,  grant,  or  give,  or  to  solicit,  accept  or  re- 
ceive any  rebate,  concession,  or  discrimination  in  respect  (to) 
the  transportation  of  any  property  in  interstate  or  foreign  com- 
merce by  any  common  carrier  subject  to  said  act  to  regulate  com- 
merce and  the  acts  amendatory  (thereof)  whereby  any  such 
property  shall  by  any  device  whatever  be  transported  at  a  less 
rate  than  that  named  in  the  tariffs  published  and  filed  by  such 
carrier,  as  is  required  by  said  act  to  regulate  commerce  and  the 
acts  amendatory  (thereof,)  or  whereby  any  other  advantage  is 
given  or  discrimination  is  practiced.  Every  person  or  corpora- 
tion or  person  (whether  carrier  or  shipper)  who  shall,  (know- 
ingly,) offer,  grant,  or  give,  or  solicit,  accept,  or  receive  any 
such  rebates,  concessions  or  discrimination  shall  be  deemed  guilty 
of  a  misdemeanor,  and  on  conviction  thereof  shall  be  punished 
by  a  fine  of  not  less  than  one  thousand  dollars  nor  more  than 
twenty  thousand  dollars :     (Provided,  That  any  person,  or  any 


§  522.]  Acts  Regulating  Commerce.  429 

ofificer  or  director  of  any  corporation  subject  to  the  provisions 
of  this  act,  or  the  act  to  regulate  commerce  and  the  acts  amenda- 
tory thereof,  or  any  receiver,  trustee,  lessee,  agent,  or  person 
acting  for  or  employed  by  any  such  corporation,  who  shall  be 
convicted  as  aforesaid,  shall,  in  addition  to  the  fine  herein  pro- 
vided for,  be  liable  to  imprisonment  in  the  penitentiary  for  a 
term  of  not  exceeding  two  years,  or  both  such  fine  and  imprison- 
ment, in  the  discretion  of  the  court.)  Every  violation  of  this 
section  shall  be  prosecuted  in  any  court  of  the  United  States 
having  jurisdiction  of  crimes  within  the  district  in  which  such 
violation  was  committed,  or  through  which  the  transportation 
may  have  been  conducted ;  and  whenever  the  offense  is  begun 
in  one  jurisdiction  and  completed  in  another  it  may  be  dealt 
with,  inquired  of,  tried,  determined,  and  punished  in  either  jur- 
isdiction in  the  same  manner  as  if  the  offense  had  been  actually 
and  whollj^  committed  therein. 

Second  part  of  section  one  of  act  February  19,  1903,  substan- 
tially as  enacted,  the  amendments  of  June  29,  1906,  being  in- 
closed in  brackets,  the  part  of  the  original  act  stricken  by  the 
amended  act  was  as  follows: 

"In  all  convictions  occurring  after  the  passage  of  this  act  for 
offenses  under  said  acts  to  regulate  commerce,  whether  commit- 
ted before  or  after  the  passage  of  this  act,  or  for  offenses  under 
this  section,  no  penalty  shall  be  imposed  on  the  convicted  party 
other  than  the  fine  prescribed  by  law,  imprisonment  wherever 
now  prescribed  as  part  of  the  penalty  being  hereby  abolished." 

Before  the  passage  of  the  Elkins  law  it  was  held  that  as  the 
question  of  whether  or  not  the  facts  and  circumstances  consti- 
tuted unjust  or  illegal  discrimination  must  be  left  to  a  jury  there 
could  be  no  certainty  as  to  whether  or  not  a  particular  act  was 
criminal,  and,  therefore,  there  could  be  no  criminal  punishment 
for  violating  section  three  of  the  act.  Tozer  v.  United  States, 
52  Fed.  917.  But  a  conviction  against  an  agent  of  a  carrier 
could  be  had  under  section  ten  for  transporting  for  less  than  the 
published  rate.  United  States  v.  I\Iich.  Cent.  R.  Co.,  43  Fed. 
26.  No  conviction  for  receiving  a  rebate  from  a  joint  rate  not 
filed  and  published.  United  States  v.  Wood,  145  Fed.  405.  A 
consignee  may  be  guilty  as  well  as  a  consignor.  The  Hepburn 
law  did  not  affect  offenses  committed  prior  to  its  passage.  Unit- 
ed States  V.  Standard  Oil  Co.,  148  Fed.  719,  155  Fed.  305.  Re- 
versed on  other  grounds.     Standard  Oil  Co.  v.  United  States^ 


430  Acts  Regulating  Commerce.  [§522. 

164  Fed.  376,  C.  C.  A.  See  also  that  offenses  not  affected  by 
section  ten  of  the  Hepburn  act.  United  States  v.  Chicago,  St. 
P.,  I\r.  &  0.  Ry.  Co.,  151  Fed.  84;  TTnited  States  v.  New  York 
C.  &  H.  R.  R.  Co.,  153  Fed.  630.  Offenses  hereunder  may  be 
prosecuted  by  information.  United  States  v.  Camden  Iron 
Works,  150  Fed.  214.  Reversed,  158  Fed.  561,  85  C.  C.  A.  585, 
because  the  initial  carrier  which  paid  the  rebate  had  filed  no 
through  schedule  of  rates  with  the  commission.  A  shipment 
from  one  point  to  another  in  New  York  State  but  passing  through 
another  state  is  interstate  commerce  and  subject  to  this  law. 
Also  holding  that  section  ten  of  Hepburn  law  did  not  affect 
prosecution  for  offenses  committed  prior  thereto.  TTnited  States 
V.  Delaware,  L.  &  W.  R.  Co.,  152  Fed.  269.  Death  before  the 
fine  is  paid  abates  the  judgment.  United  States  v.  Pomeroy, 
152  Fed.  279.  Reversed,  because  the  circuit  court  had  no  power 
to  act,  an  appeal  having  been  taken.  United  States  v.  New 
York  C.  &  H.  R.  R.  Co.,  164  Fed.  324,  C.  C.  A.  .  Act  con- 
stitutional. Crime  may  be  punished  in  any  district  through 
which  the  transportation  is  conducted.  Contract  to  maintain 
established  rates  ineffective  after  a  higher  rate  has  been  filed 
and  published.  Armour  Packing  Co.  v.  United  States,  153  Fed. 
1,  82  C.  C.  A.  135.  14  L.  R.  A.  (N.  S.)  400.  Affirmed.  209  U. 
S.  56,  52  L.  Ed.  681,  28  Sup.  Ct.  428.  See  note  to  law  edition. 
Section  not  restricted  to  departures  from  tariff  rates,  but  act 
applies  to  all  illegal  discriminations.  United  States  v.  Vacuum 
Oil  Co.,  153  Fed.  598.  Defective  indictments  for  discrimina- 
tion. United  States  v.  B.  &  0.  R.  Co.,  153  Fed.  997.  The  extent 
stated  to  which  section  one  of  Elkins  act  Avas  repealed  by  Hep- 
burn law.  Great  Northern  Ry.  Co.  v.  United  States,  155  Fed. 
945.  Affirmed,  holding  that  the  right  to  prosecute  for  an  offense 
committed  prior  to  the  Hepburn  law  was  not  taken  away  by  that 
law.  Great  N.  R.  Co.  v.  United  States,  208  U.  S.  452,  52  L. 
Ed.  567,  28  Sup.  Ct.  .  Same  effect  and  holding  act  not  un- 
constitutional. United  States  v.  Great  N.  R.  Co.,  157  Fed.  288. 
Where  tariff  filed  by  another  no  crime.  United  States  v.  New 
York  C.  &  H.  R.  R.  Co..  157  Fed.  293.  Act  not  imconstitutional 
and  applies  to  a  carrier  wholly  within  a  state  when  it  joins  in  the 
published  through  rate.  United  States  v.  Vacuum  Oil  Co..  158 
Fed.  536.  Act  applies  to  express  companies.  The  failure  to  use 
the  word  "unjust"  before  ''discrimination"  in  new  act  does 
not  broaden  effect  of  act  as  amended.    United  States  v.  Wells 


§  523.]  Acts  Regulating  Commerce.  431 

Fargo  Ex.  Co.,  161  Fed.  606.  Applies  to  refunding  elevator 
charges  when  no  provision  in  tariff  therefor.  Chicago,  St.  P., 
M.  S^  0.  Ry.  Co.  V.  United  States,  162  Fed.  835.  No  defense  that 
rebate  granted  in  compromise  of  claims  for  loss  of  property  in 
transit.  United  States  v.  A.  T.  &  S.  F.  Ry.  Co.,  163  Fed.  111. 
Each  shipment  upon  which  a  rebate  is  actually  paid,  regardless 
of  its  size,  is  a  separate  offense.  No  crime  unless  and  until  pay- 
ment is  made.  Standard  Oil  Co.  of  Indiana  v.  United  States, 
164  Fed.  376,  C.  C.  A.  .  Each  rebate  payment,  regard- 
less of  number  of  shipments,  constitutes  a  separate  offense;  not 
decided  whether  or  not  each  separate  agreement  to  pay  a  rebate 
would  constitute  an  offense.  United  States  v.  Stearns  Salt  & 
Lumber  Co.,  165  Fed.  735.  Each  payment,  although  covering 
more  than  one  shipment,  constitutes  one  and  only  one  offense. 
United  States  v.  Bimch,  165  Fed.  736.  Prosecution  for  failure 
to  file  schedules  must  be  at  Washington,  D.  C.  "Rates  in  force" 
defined.  New  York  C.  &  H.  R.  R.  Co.  v.  United  States,  166  Fed. 
267,  C.  C.  A.  ,  reversing  153  Fed.  630.  The  device  by 
which  a  rebate  is  granted  is  illegal  even  though  not  secret  or 
fraudulent.  Violations  may  be  tried  in  any  district  through 
which  the  transportation  is  had.  Armour  Packing  Co.  v.  United 
States,  209  U.  S.  56,  52  L.  Ed.  681,  28  Sup.  Ct.  428;  Chicago,  B. 
&  Q.  R.  Co.  V.  United  States,  209  U.  S.  90,  52  L.  Ed.  698,  28  Sup. 
Ct.  .  Where  full  rate  is  paid  and  rebate  granted  at  intervals, 
upon  claims  being  filed  therefor,  each  rebate  payment  consti- 
tutes a  separate  offense.  New  York  C.  &  H.  R.  R.  Co.  v.  United 
States,  212  U.  S.  481,  498,  53  L.  Ed.  ,  29  Sup.  Ct.  .  Same 
style  case,  212  U.  S.  500,  53  L.  Ed.  ,  29  Sup.  Ct.  .  A  party 
to  a  joint  rate,  though  not  filed  and  published  by  it,  may  be 
guilty.  United  States  v.  New  York  C.  &  H.  R.  R.  Co.,  212  U. 
S.  509,  53  L.  Ed.  ,  29  Sup.  Ct.  .  Where  the  shipper 
pays  the  legal  rate  and  at  intervals  receives  a  rebate,  each  paj^- 
nient  thereof  is  a  separate  offense.  New  York  C.  &  H.  R.  R. 
Co.  V.  United  States,  212  U.  S.  481,  53  L.  Ed.  ,  29  Sup.  Ct.  . 
§  523.  Act  of  officer  or  agent,  when  binding. — In  construing 
and  enforcing  the  provisions  of  lliis  section,  the  act,  omission, 
or  failure  of  any  officer,  agent,  or  other  person  acting  for  or 
employed  by  any  common  carrier,  or  shipper,  acting  within  the 
scope  of  his  employment,  shall  in  every  case  be  also  deemed  to 
bo  the  act,  omission,  or  f;iilurc  of  such  carrier  or  shipper  as 
H'C]]  (^3  that  of  the  person. 


•i;^2  Acts  Regulating  Commerce.  [§  524. 

Second  paragraph  of  section  one  of  the  original  Elkins  act, 
except  the  act  of  June  29,  1906,  added  the  words  ''or  shipper" 
after  ''carrier"  where  it  occurs. 

Because  the  act  of  the  agent  is  the  act  of  the  corporation, 
both  may  be  included  in  one  indictment.  New  York  C.  &  H.  R. 
R.  Co.  V.  United  States,  212  U.  S.  481,  53  L.  Ed.  ,  29  Sup. 
Ct. 

§  524.  Carrier  filing  or  participating  in  rate  bound  thereby. — 
Whenever  any  carrier  files  Avith  the  Interstate  Commerce  Com- 
mission or  publishes  a  particular  rate  under  the  provisions  of 
the  act  to  regulate  commerce  or  acts  amendatory  thereof,  or 
participates  in  any  rates  so  filed  or  published,  that  rate  as 
against  such  carrier,  its  officers  or  agents,  in  any  prosecution 
begun  under  this  act  shall  be  conclusively  deemed  to  be  the 
legal  rate,  and  any  departure  from  such  rate,  or  any-  offer  to  de- 
part therefrom,  shall  be  deemed  to  be  an  offense  under  this  sec- 
tion of  this  act. 

Part  of  second  paragraph  of  section  one,  Elkins  act,  as  origin- 
ally exacted,  except  "thereof"  was  substituted  for  "thereto," 
in  the  act  of  June  29,  1906. 

§  525.  Forfeiture  for  rebating  in  addition  to  penalties.  Lim- 
itation of  six  years  fixed. — Any  person,  corporation,  or  company 
who  shall  deliver  property  for  interstate  transportation  to  any 
common  carrier,  subject  to  the  provisions  of  this  act.  or  for 
whom,  as  consignor  or  consignee,  any  such  carrier  shall  trans- 
port property  from  one  state,  territory,  or  the  District  of  Co- 
lumbia, or  foreign  country,  who  shall  laiowingly  by  employee, 
agent,  officer,  or  otherwise,  directly  or  indirectly,  by  or  through 
any  means  or  device  whatsoever,  receive  or  accept  from  such 
common  carrier  any  sum  of  money  or  any  other  valuable  con- 
sideration as  a  rebate  or  offset  against  the  regular  charges  for 
transportation  of  such  property,  as  fixed  by  the  schedules  of 
rates  provided  for  in  this  act.  shall  in  addition  to  any  penalties 
provided  by  this  act  forfeit  to  the  United  States  a  sum  of  money 
three  times  the  amount  of  money  so  received  or  accepted  and 
three  times  the  value  of  any  other  consideration  so  received  or 
accepted,  to  be  ascertained  by  the  trial  court;  and  the  Attorney- 
General  of  the  United  States  is  authorized  and  directed,  Avhen- 
ever  he  has  reasonable  grounds  to  believe  that  any  such  person, 
corporation,  or  companj^  has  Icnowingly  received  or  accepted 
from  any  such  common  carrier  any  sum  of  money  or  other  val- 


§  526.]  Acts  Regulating  Commerce.  433 

liable  consideration  as  a  rebate  or  offset  as  aforesaid,  to  in- 
stitute in  any  court  of  the  United  States  of  competent  jurisdic- 
tion a  civil  action  to  collect  the  said  sum  or  sums  so  forfeited 
as  aforesaid;  and  in  the  trial  of  said  action  all  such  rebates  or 
other  considerations  so  received  or  accepted  for  a  period  of  six. 
years  prior  to  the  commencement  of  the  action  may  be  included 
therein,  and  the  amount  recovered  shall  be  three  times  the 
total  amount  of  money,  or  three  times  the  total  value  of  such 
consideration,  so  received  or  accepted,  or  both,  as  the  case  may 
be. 

New  provision  added  to  section  one,  Elkins  act,  by  act  June 
29,  1906. 

§  526.  Contracts  and  combinations  to  prevent  continuous  car- 
riage of  freight  prohibited. — That  it  shall  be  imlawful  for  any 
connnon  carrier  subject  to  the  provisions  of  this  act  to  enter  into 
any  combination,  contract,  or  agreement,  express  or  implied,  to 
prevent,  by  change  of  time  schedule,  carriage  in  different  cars, 
or  by  other  means  and  devices,  the  carriage  of  freights  from 
being  continuous  from  the  place  of  shipment  to  the  place  of  des- 
tination ;  and  no  break  of  bulk,  stoppage,  or  interruption  made 
by  such  common  carrier  shall  prevent  the  carriage  of  freights 
from  being  and  being  treated  as  one  continuous  carriage  from 
the  place  of  shipment  to  the  place  of  destination,  imless  such 
break,  stoppage,  or  interruption  was  made  in  good  faith  for 
some  necessary  purpose,  and  without  any  intent  to  avoid  or  un- 
necessarily interrupt  such  continuous  carriage  or  to  evade  any 
of  the  provisions  of  this  act. 

Section  seven  of  the  original  act  to  regulate  commerce. 

An  injunction  may  be  granted  to  prevent  a  carrier  and  its 
employees  from  refusing  to  receive  passengers  and  commodities 
from  a  connecting  line.  Toledo,  A.  A.  &  N.  M.  Ry.  Co.  v.  Penn. 
Co.,  54  Fed.  730,  746,  19  L.  R.  A.  387,  5  I.  C.  C.  R.  545,  22  U. 
S.  App.  561. 

§  527.  Damages  and  attorneys  fees  allowed  for  violations. — 
That  in  case  any  common  carrier  subject  to  the  provisions  of  this 
act  shall  do.  cause  to  be  done,  or  permit  to  be  done  any  act. 
matter,  or  thing  in  this  act  jirohibitcd  or  declared  to  be  unlaw- 
ful, or  shall  omit  to  do  any  act,  matter,  or  thing  in  this  act  re- 
quired to  be  done,  such  common  carrier  shall  ])o  liable  to  the 
|)erson  or  persons  injured  thereby  for  Ihc  full  jiiiioiint  of  dam- 
ages sustained  in  conser|uonce  of  any  such  violalion  of  the  pro- 


434  Acts  Regulating  Commerce.  [§  528. 

visions  of  this  act,  together  with  a  reasonable  counsel  or  attor- 
ney's fee,  to  be  fixed  by  the  court  in  every  case  of  recovery, 
which  attorney's  fee  shall  be  taxed  and  collected  as  part  of  the 
costs  in  the  case. 

Section  eight  of  original  act.  For  nnnotations  see  next  suc- 
ceeding section. 

§  528.  Where  to  sue  for  damages.  Compulsory  attendance  of 
witnesses  and  production  of  papers. — That  any  person  or  persons 
claiming  to  be  damaged  by  any  common  carrier  subject  to  the 
provisions  of  this  act  may  either  make  complaint  to  the  com- 
mission as  hereinafter  provided  for,  or  may  bring  suit  in  his  or 
their  own  behalf  for  the  recovery  of  the  damages  for  which  such 
common  carrier  may  be  liable  under  the  provisions  of  this  act, 
in  any  district  or  circuit  court  of  the  United  States  of  compe- 
tent jurisdiction  ;  but  such  person  or  persons  shall  not  have  the 
right  to  pursue  both  of  said  remedies,  and  must  in  each  case 
elect  which  one  of  the  two  methods  of  procedure  herein  pro- 
vided for  he  or  they  will  adopt.  In  any  such  action  brought  for 
the  recovery  of  damages  the  court  before  which  the  same  shall 
be  pending  may  compel  any  director,  officer,  receiver,  trustee,  or 
agent  of  the  corporation  or  company  defendant  in  such  suit  to 
attend,  appear,  and  testify  in  such  case,  and  may  compel  the 
production  of  the  books  and  papers  of  such  corporation  or  com- 
pany party  to  any  such  suit;  the  claim  that  any  such  testimony 
or  evidence  may  tend  to  criminate  the  person  giving  such  evi- 
dence shall  not  excuse  such  witness  from  testifying,  but  such 
evidence  or  testimony  shall  not  be  used  against  such  person  on 
the  trial  of  any  criminal  proceeding. 

Section  nine  of  the  original  act. 

Sections  eight  and  nine  are  so  related  that  the  annotations 
herein  apply  to  each.  There  are  many  cases,  formal  and  in- 
formal, awarding  reparation  without  announcing  any  rule  or 
principle.  These  ape  not  sufficiently  important  to  be  cited.  The 
commission  can  not  award  damages  for  failure  to  furnish  cars, 
an  action  therefor  must  be  brought  in  a  case  at  common  law. 
Heck  V.  East  Tenn.,  Va.  &  Ga.  Ry.  Co.,  1  I.  C.  C.  R.  495,  1  I. 
C.  R.  775;  Riddle  v.  New  York,  L.  E.  &  W.  R.  Co.,  1  I.  C.  C. 
R.  594,  1  I.  C.  R.  787.  These  cases  were  decided  before  the 
amendment  to  section  sixteen  by  act  March  2,  1889,  and  since 
said  amendment  are  not  followed.     Rawson  v.  Newport  N.  & 


§  528.]  Acts  Regulating  Commerce.  435 

M.  V.  R.  Co.,  3  I.  C.  C.  R.  6,  2  I.  C.  R.  626;  MacLoon  v.  Chi- 
cago &  N.  W.  R.  Co.,  5  I.  C.  C.  R.  84,  3  I.  C.  R.  711. 

When  a  shipper  gives  instructions  as  to  how  his  freight  shall 
be  routed,  a  violation  of  said  instructions  to  his  injury  author- 
izes a  recovery  of  the  damage  sustained.  Pankey  v.  Richmond 
&  D.  R.  Co.,  3  I.  C.  C.  R.  658,  3  I.  C.  R.  33;  Rea  v.  M.  &  0.  R. 
Co.,  7  I.  C.  C.  R.  43.  But  if  no  instructions  are  given,  carrier 
may  route.  Dewey  Bros.  Co.  v.  B.  &  0.  R.  Co.,  11  I.  C.  C.  R. 
481.  But  carrier  must  forward  shipments  with  due  regard  to 
rights  of  shipper,  and  upon  failure  to  do  so,  reparation  allowed. 
Hennepin  Paper  Co.  v.  N.  Pac.  Ry.  Co.,  12  I.  C.  C.  R.  535. 
These  sections  with  reference  to  reparation  show  an  intention 
upon  the  part  of  Congress  to  give  the  commission  power  to  fix 
rates.  Perry  v.  Florida  C.  &  P.  R.  Co.,  5  I.  C.  C.  R.  97,  3  I.  C. 
R.  740,  746,  citing  a  large  number  of  cases  in  which  the  com- 
mission had  fixed  reasonable  rates.  A  money  order  for  repara- 
tion may  issue  against  a  receiver  of  a  carrier.  Loud  v.  South 
Carolina  R.  Co.,  5  I.  C.  C.  R.  529,  4  I.  C.  R.  205.  Rate  reduced, 
but,  under  the  circumstances  of  the  case,  reparation  denied. 
James  &  Abbott  v.  Canadian  Pac.  R.  Co.,  5  I.  C.  C.  R.  612,  4  I. 
C.  R.  274,  283.  Remedy  for  damages  caused  by  delay,  rotting, 
or  other  deterioration,  or  damage,  not  caused  by  a  violation  of 
the  act  is  in  the  courts.  Duncan  v.  A.  T.  &  S.  F.  R.  Co.,  6  I.  C. 
C.  R.  85,  4  I.  C.  R.  385.  Each  carrier  participating  in  an  over- 
charge is  liable  for  the  amount  thereof,  and  when  an  association 
complains  against  a  rate,  each  of  its  members  at  the  time  of  the 
hearing  is  entitled  to  reparation.  Independent  Refiners'  Asso. 
V.  Western  New  York  &  Penn.  R.  Co.,  6  I.  C.  C.  R.  378,  384. 
Order  not  enforced.  AVestern  New  York  &  Penn.  R.  Co.  v.  Penn. 
Refining  Co.,  137  Fed.  343.  A  supplemental  petition  praying 
rcparatifm  filed  two  and  a  half  years  after  an  order  declaring  a 
rate  illegal,  dismissed.  Rice  etc.  v.  Western  ,N.  Y.  &  Penn.  R. 
Co.,  6  I.  C.  C.  R.  455.  A  discriminatory  rate,  though  itself  rea- 
sonable, justifies  an  order  of  reparation.  Board  of  Trade  of 
Lynchburg  v.  Old  Dominion  S.  S.  Co.,  6  I.  C.  C.  R.  632,  645. 
Order  of  reparation  must  be  based  on  evidence  that  rate  was  un- 
reasonable when  paid.  Grain  Shippers'  Asso.  v.  111.  Cent.  R. 
Co.,  8  I.  C.  C.  R.  158.  Remedy  by  way  of  damages  for  unlawful 
rate  is  entirely  inadequate  and  inconsistent.  McGrew  v.  Mo. 
Pac.  Ry.  Co.,  8  I.  C.  C.  R.  630,  642.  Rates  reduced  l)nt  repara- 
tion denied.     Johnson  v.  Chicago,  St.  P.,  M.  &  0.  R,  Co.,  9  I. 


436  Acts  Regulating  Commerce.  [§  528. 

C.  C.  R.  221,  244.  Shipments  owned  by  several  parties  may  be 
made  under  one  bill  of  lading  in  the  name  of  one  consignor  to 
one  consignee  at  car  load  ratefj.  Buckeye  Buggy  Co.  v.  Cleve- 
land etc.  Ry.  Co.,  9  I.  C.  C.  R.  626;  California  Com.  Asso.  v. 
Wells  Fargo  Ex.  Co.,  14  I.  C.  C.  R.  422;  Export  Shipping  Co. 
V.  Wabash  R.  Co.,  14  I.  C.  C.  R.  437.  Sections  constitutional,  as 
trial  by  .jury  may  be  had  when  order  of  commission  sued  on. 
Cattle  Raisers'  Asso.  v.  Chicago,  Burlington  &  Q.  R.  Co.,  10  I.  C. 
C.  R.  83.  The  measure  of  damages  is  the  difference  between 
what  should  have  been  paid  and  what  was  exacted.  Where  a 
shipper  pays  less  than  he  should  with  the  consent  of  the  carrier, 
the  carrier  cannot  recover  the  balance  of  the  lawful  rate.  Gard- 
ner V.  So.  Ry.  Co.,  10  I.  C.  C.  R.  342.  350.  351.  When  com- 
plainants refused  to  buy  ties  because  of  a  failure  of  a  carrier  to 
furnish  ears,  they  could  recover  the  profit  they  would  have  made 
had  they  bought  the  ties  and  been  enabled  to  ship  them.  Pax- 
ton  Tie  Co.  V.  Detroit  S.  R.  Co.,  10  I.  C.  C.  R.  422,  426.  Such 
failure  to  furnish  cars  must  constitute  discrimination  and  the 
proof  of  damages  must  be  clear.  Richmond  Elevator  Co.  v. 
Pere  Marquette  R.  Co.,  10  I.  C.  C.  R.  629,  636.  When  a  com- 
bination of  locals  was  less  than  the  through  rate  and  a  carrier 
refused  to  let  a  shipper  ship  so  as  to  use  the  two  locals,  the  ship- 
per could  recover  reparation  on  all  local  shipments.  Hope  Cot- 
ton Oil  Co.  V.  Tex.  &  Pac.  Ry.  Co.,  10  I.  C.  C.  R.  696.  Right 
not  barred  by  pending  suit  in  state  court,  otherwise  if  suit  was 
pending  in  a  federal  court.  Gallogly  v.  Cincinnati,  H.  &  D.  Ry. 
Co.,  11  I.  C.  C.  R.  1,  9.  After  decision  as  to  rate  retained  for 
further  proceedings  as  to  reparation.  Cattle  Raisers'  Asso.  v. 
Chicago,  B.  &  Q.  R.  Co.,  11  I.  C.  C.  R.  277.  Profits  may  be  re- 
covered for  discrimination,  but  reparation  is  not  measured  by  the 
probability  of  profit.  Eaton  v.  Cincinnati,  H.  &  D.  Ry.  Co.,  11 
I.  C.  C.  R.  619,  626.  Reparation  allowed  only  from  date  com- 
plainant wrote  a  letter  to  commission  complaining  of  rate. 
Texas  Cement  Plaster  Co.  v.  St.  L.  &  S.  F.  R.  Co.,  12  I.  C.  C. 
R.  68,  73.  Reparation  for  breach  of  contract  for  a  privilege  not 
in  the  tariff  cannot  be  allowed.  Shiel  &  Co.  v.  111.  Cent.  R. 
Co..  12  I.  C.  C.  R.  210.  Claim  for  reparation  should  be  made 
in  original  complaint.  Dallas  Freight  Bureau  v.  Gulf,  C.  &  S. 
F.  Ry.  Co.,  12  I.  C.  C.  R.  223.  For  detriment  to  business  directly 
and  proximately  resulting  from  discrimination,  reparation  may 
be  awarded.     Rogers  &  Co.  v.  Philadelphia  &  R.  R.  Co.,  12  I. 


§  528.]  Acts  Regulating  Commerce.  437 

C.  C.  R.  308.    Cannot  recover  because  a  rate  less  than  the  tariff 
rate  is  quoted  and  relied  upon.     Poor  v.  Chicago,  B.  &  Q.  R. 
Co.,  12  I.  C.  C.  R.  418,  423.  469.    Reparation  does  not  follow  re- 
duction of  rate  as  a  matter  of  course.     P"'armers  Warehouse  Co. 
V.  L.  &  N.  R.  Co.,  12  I.  C.  C.  R.  457.    Paper  rate  not  a  basis  for 
reparation.    ]Mo.  &  Kans.  Shippers'  Assn.  y.  ]M.  K.  &  T.  Ry.  Co., 
12  I.  C.  C.  R.  483.    The  mere  fact  that  a  charge  is  discontinued 
or  a  rate  reduced  will  not  require  the  granting  of  reparation. 
Leonard  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  12  I.  C.  C.  R.  492. 
Reparation  not  allowed  when  a  through  rate  in  excess  of  the 
locals  is  paid  on  a  through  shipment.     Morgan  v.  M.  K.  &  T. 
Ry.  Co.,  12  I.  C.  C.  R.  525.     Shippers  by  reshipping  may  take 
advantage  of  the  locals  less  than  the  through  rate.     Laning- 
Harris  Coal  &  Grain  Co.  v.  Mo.  Pac.  Ry.  Co.,  13  I.  C.  C.  R.  154. 
When   shippers   designate   the   route,   they   Are  not   entitled   to 
reparation   because   there   was   a   cheaper   route.      Stedman   v. 
Chicago  &  N.  W.  Ry.  Co.,  13  I.  C.  C.  R.  167;  William  Larsen 
Canning  Co.  v.  Chicago,  &  N.  W.  Ry.  Co.,  13  I.  C.  C.  R.  286. 
Though  a  shipper  must  pay  the  rates  legally  established,  he  may 
recover  the  excess  over  a  reasonable  rate.     Coomes  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  13  I.  C.  C.  R.  192.     Protest  when  paying 
freight  mmecessary.     Baer  Bros.  Mercantile  Co.  v.  Mo.  Pac.  Ry. 
Co..  13  I.  C.  C.  R.  329 ;  So.  Pine  Lumber  Co.  v.  So.  Ry.  Co.,  14 
I.  C.  C.  R.  195;  Nicola,  Stone  &  Myers  Co.  v.  L.  &  N.  R.  Co., 
14  I.  C.  C.  R.  199.     Complaint  in  name  of  an  association  not 
naming  persons  in  whose  behalf  it  is  filed  and  not  stating  with 
reasonable  particularity  the  shipments  on  which  reparation  is 
sought  not  sufficient  to  stop  limitation.    ]\Iissouri  &  Kansas  Ship- 
pers' Asso.  V.  A.  T.  &  S.  F.  Ry.  Co..  13  I.  C.  C.  R.  411.    Informal 
written  presentation   of   claim  stops  limitation.     Venus  v.   St. 
L.,  I.  M.  &  S.  Ry.  Co..  15  L  C.  C.  R.  136.     Reparation  allowed 
only  from  date  of  filing  supplemental  petition.     Cattle  Raisers' 
Asso.  V.  :\r.  K.  &  T.  Ry.  Co.,  13  I.  C.  C.  R.  418.    AYhere  reduced 
rates  have  been  received  because  of  irregularities,  correction  of 
such  no  ground  for  reparation.     Bannon  v.  So.  Ex.  Co.,  13  I. 
C.  C.  R.  516.    Reparation  awarded  for  refusing  party  rate  ticket 
to  one  when  granted  to  others.     Koch  Secret  Service  v.  L.  &  N. 
R.  Co.,  13  I.  C.  C.  R.  523.     Reparation  awarded  for  advancing 
a  rate  put  in  at  tbc  request  of  a  shipper  ^\■ho  had  adjusted  his 
business  to  the  lower  rate.     New  Albany  Furniture  Co.  v.  Mo- 
bile  etc.  R.  Co.,  13  L  C.  C.  R.  504.     Commission  has  no  juris- 


438  Acts  Eegulating  Commerce.  [§  528. 

diction  to  award  damages  for  breach  of  contract.  La  Salle  etc. 
R.  Co.  V.  Chicago  &  N.  W.  R.  Co.,  3  3  I.  C.  C.  R.  610.  Excess 
rate  paid  may  be  recovered  though  shipper  not  damaged.  Bur- 
gess V.  Transcontinental  Freight  Bureau,  13  I.  C.  C.  R.  668. 
Reparation  allowed  only  from  date  of  filing  complaint,  id. 
Voluntary  reduction  of  rate  not  conclusive  of  right  to  reparation 
for  paying  the  higher  rate.  Ottumwa  Bridge  Co.  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  14  I.  C.  C.  R.  121.  The  true  owner  paying 
the  excessive  charge  can  alone  recover.  Manufacturers  selling 
F.  0.  B.  their  mills  cannot  recover.  Nicola,  Stone  &  INIyers  Co. 
V.  L.  &  N.  R.  Co.,  14  I.  C.  C.  R.  199.  Mistake  in  quoting  rate 
not  relieve  shipper  from  paying  full  tariff!  rate.  Foster  Bros. 
Co.  V.  Duluth  etc.  Ry.  Co.,  14  I.  C.  C.  R.  232,  236.  Misrouting  at 
the  highest  rate  entitles  shipper  to  reparation.  I\IeCaull-Dins- 
more  Co.  v.  Chicag'o  G.  W.  Ry.  Co.,  14  I.  C.  C.  R.  527;  Cedar 
Hill  Coal  &  Coke  Co.  v.  Col.  So.  Ry.  Co.,  14  I.  C.  C.  R.  606; 
Gus  Momsen  &  Co.  v.  Gila  Valley  etc.  Ry.  Co.,  14  I.  C.  C.  R. 
614.  Reparation  allowed  because  through  rate  exceeded  sum  of 
locals.  ]\linneapolis  Threshing  Mch.  Co.  v.  Chicago,  j\1.  &  St.  P. 
Ry.  Co.,  14  I.  C.  C.  R.  536;  Sylvester  V.  Penn.  R.  Co.,  14  I.  C. 
C.  R.  573 ;  Hardenberg,  D.  &  G.  v.  N.  Pac.  Ry.  Co.,  14  I.  C.  C. 
R.  579.  In  allowing  reparation  commission  takes  no  account  of 
fact  that  less  than  tariff  rate  was  paid  and  must  assume  that  full 
rate  was  paid.  Wilson  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  14  I.  C. 
C.  R.  549,  550.  When  a  car  of  particular  capacity  is  ordered  and 
one  of  higher  capacity  furnished,  rate  should  be  based  on  ca- 
pacity of  car  ordered.  Am.  Lumber  &  Mfg.  Co.  v.  So.  Pac.  Co., 
14  I.  C.  C.  R.  561.  Commission  no  authority  to  adjudicate  a 
claim  against  a  shipper.  Laning-Harris  Coal  &  Grain  Co.  v. 
St.  Louis  &  S.  F.  R.  Co.,  15  I.  C.  C.  R.  37.  Reparation  not 
awarded  in  this  case  where  carrier  voluntarily  reduced  rate. 
Menefee  Lumber  Co.  v.  Tex.  &  Pac.  Ry.  Co.,  15  I.  C.  C.  R.  49. 
Cannot  aw^ard  reparation  for  failure  to  make  prompt  delivery. 
Blume  &  Co.  v.  Wells  Fargo  and  Co.,  15  I.  C.  C.  A.  53,  55.  Com- 
mission has  jurisdiction  regardless  of  amount  in  controversy, 
but  does  not  award  costs  or  attorn ej^'s  fees.  Washer  Grain  Co. 
V.  Mo.  Pac.  Ry.  Co.,  15  I.  C.  C.  R.  147,  151,  152.  Jurisdiction 
to  award  damages  for  diverted  shipments.  Woodward  &  Dick- 
erson  v.  L.  &  N.  R.  Co.,  15  I.  C.  C.  R.  170.  Commission  may 
authorize  a  compromise  of  a  claim  for  reparation.  Joice  &  Co. 
V.  111.  Cent.  R.  Co.,  15  I.  C.  C.  R.  239 ;  Goff-Kirby  Coal  Co.  v. 


§  528,]  Acts  Regulating  Commerce.  439 

Bessemer  &  Lake  E.  R.  Co.,  15  I.  C.  C.  R.  553.  No  jurisdiction 
in  commission  to  require  a  shipper  to  make  good  an  undercharge. 
Falls  &  Co.  V.  Chicago,  R.  I.  &  P.  Ry.  Co.,  15  I.  C.  C.  R.  269. 
Should  claim  reparation  in  original  complaint  and  not  wait  until 
after  a  determination  of  the  question  of  the  validity  of  a  rate? 
Morse  Produce  Co.  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  15  I.  C.  C. 
R.  334.  Scope  of  sections  eight  and  nine  discussed,  holding 
reparation  may  be  awarded  on  past  shipments.  Arkansas  Fuel 
Co.  V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  16  I.  C.  C.  R.  95,  98.  Dam- 
ages for  loss  of  employment  too  speculative.  Allender  v.  Chi- 
cago, B.  &  Q.  R.  Co.,  16  I.  C.  C.  R.  103.  An  association  may 
maintain  a  complaint  for  damages  to  its  members.  California 
Com.  Asso.  V.  Wells  Fargo  Ex.  Co.,  16  I.  C.  C.  R.  458,  463.  In 
a  suit  for  damages  for  violating  the  fourth  section  brought  in  the 
United  States  circuit  court,  the  measure  of  damages  is  the  dif- 
ference between  the  amount  paid  for  the  shorter  haul  and  the 
charge  for  the  longer  haul ;  the  jury  may  allow  interest,  but  such 
interest  dates  from  the  last  payment.  Junod  v.  Chicago  &  N.  A¥. 
Ry.  Co.,  47  Fed.  290;  Osborne  v.  Chicago  &  N.  W.  Ry.  Co.,  48 
Fed.  49.  Reversed  on  other  points.  Chicago  &  N.  W.  Ry.  Co. 
V.  Osborne,  and  same  v.  Junod,  52  Fed.  912,  3  C.  C.  A.  347.  Writ 
of  certiorari  refused  by  Supreme  Court.  146  U.  S.  364,  36  L. 
Ed.  1002;  see  also  Parsons  v.  Chicago  &  N.  W.  R.  Co.,  167  U. 
S.  447,  453,  42  L.  Ed.  231,  234.  Common  law  remedies  for  ex- 
tortion are  superceded  by  a  statute  creating  a  commission  to 
determine  the  question.  Winsor  Coal  Co.  v.  Chicago  &  A.  R.  Co., 
52  Fed.  716,  referring  to  a  state  statute.  Right  for  damages  to 
exist  for  unlawfully  refusing  to  interchange  traffic.  Toledo,  A. 
A.  &  N.  M.  Ry.  Co.  v.  Penn.  Co.,  54  Fed.  730,  740,  19  L.  R.  A. 
387,  5  I.  C.  R.  545,  22  U.  S.  App.  561.  Cannot  recover  for 
a  violation  of  the  interstate  commerce  act  in  a  state  court ;  there 
is  no  common  law  of  the  United  States.  Swift  v.  Philadelphia 
&  R.  R.  Co.,  58  Fed.  858.  Same  doctrine  as  to  common  law  an- 
nounced same  case.  64  Fed.  59.  Contra,  Murray  v.  Chicago  & 
N.  W.  Ry.  Co.,  62  Fed.  24.  Affirmed.  92  Fed.  868,  35  C.  C. 
A.  62,  and  Kinnavey  v.  Terminal  R.  Asso.,  81  Fed.  802,  804. 
See  as  to  common  law.  Western  Union  Telegraph  Co.  v.  Call 
Publishing  Co.,  181  U.  S.  92,  45  L.  Ed.  765,  21  Sup.  Ct.  561, 
where  Mr.  Justice  Brewer  says : 

"There  is  no  body  of  federal  common  law  separate  and  dis- 
tinct from  the  common  law  existing  in  the  several  states,  in  the 


440  Acts  Ki-xin^ATiNG  Commerce.  [§  528. 

sense  that  tliere  is  a  botly  of  statute  law  enacted  by  Congress 
separate  and  distinct  from  the  body  of  statute  law  enacted  by 
the  several  states,  l^ut  it  is  an  entirely  different  thing  to  hold 
that  there  is  no  common  law  in  force  generally  throughout  the 
United  States,  and  that  the  countless  multitude  of  interstate 
commercial  transactions  are  subject  to  no  rules  and  burdened  by 
no  restrictions  other  than  those  expressed  in  the  statutes  of 
Congress.  *******  h^q  principles  of  the  common 
law  are  operative  upon  all  interstate  commercial  transactions, 
except  so  far  as  they  are  modified  by  congressional  enactment." 
A  joint  through  rate  is  not  the  basis  for  a  local  rate  in  a  suit 
for  discrimination.  Parsons  v.  Chicago  &  N.  W.  Ry.  Co.,  63  Fed. 
903.  Affirmed.  167  U.  S.  447,  42  L.  Ed.  231,  17  Sup.  Ct.  887. 
The  federal  courts  have  exclusive  jurisdiction  of  suits  brought 
under  sections  eight  and  nine.  Van  Patten  v.  Chicago,  M.  &  Sf, 
P.  R.  Co.,  74  Fed.  981.  And  suits  may  be  brought  in  any  dis- 
trict in  which  the  defendant  resides.  See  also  Connor  v.  Vicks- 
burg  etc.  R.  Co.,  36  Fed.  273,  1  L.  R.  A.  331.  The  rates  filed  and 
published  according  to  the  interstate  commerce  law  are  the  only 
legal  rates,  and  the  fact  that  such  rates  are  published  is  a  de- 
fense in  a  court  to  a  suit  for  damages  alleging  that  such  rates 
are  unreasonable.  Van  Patten  v.  Chicago,  M.  &  St.  P.  Ry.  Co., 
81  Fed.  545.  Rights  under  the  section  are  assignable.  Edmunds 
V.  111.  Cent.  R.  Co.,  80  Fed.  78.  What  a  petition  under  the  sec- 
tions for  violating  section  two  should  show  and  disagreeing  with 
the  Swift  Case,  supra,  on  the  question  of  a  common  law  of  the 
United  States.  Kinnavey  v.  Terminal  R.  Asso.,  81  Fed.  802. 
There  must  be  an  active,  not  merely  a  threatened,  discrimination 
as  a  basis  for  a  suit  for  damages.  Lehigh  V.  R.  Co.  v.  Rainey, 
112  Fed.  487.  The  remedy  provided  by  tliese  sections  is  exclu- 
sive and  an  injunction  will  not  be  granted  to  compel  obedience 
to  section  three.  Central  Stock  Yards  Co.  v.  L.  &  N.  R.  Co., 
112  Fed.  823.  No  limitation  being  fixed  by  the  act,  the  law  of 
the  state  where  suit  is  brought  will  govern  in  that  particular. 
Ratican  v.  Terminal  R.  Asso.,  114  Fed.  666.  Contra,  Carter  v. 
New  Orleans  &  N.  E.  R.  Co.,  143  Fed.  99,  74  C.  C.  A.  293,  liold- 
ing  that  R.  S.  U.  S.  §  1047  applies.  That  the  state  law  governs 
seems  to  be  the  law.  Chattanooga  Foundry  &  Pipe  "Works  v. 
Atlanta.  203  U.  S.  390,  51  L.  Ed.  241,  27  Sup.  Ct.  65.  Opinion 
of  eommissi(m  inadmissible  in  a  suit  to  enforce  its  order,  validity 
of  its  order  rests  upon  the  existing  facts,  whether  disclosed  to 


§  528.]  Acts  Eegt^lattng  Commerce.  441 

the  commission  or  not,  the  election  to  proceed  before  the  com- 
mission bars  a  suit  before  the  courts,  no  appeal  is  allowed  from 
an  order  of  the  commission  granting  or  refusing  reparation. 
Effect  of  the  order  when  suit  brought  thereon.  Western  N.  Y. 
&  Penn.  E.  Co.  v.  Penn  Refining  Co.,  137  Fed.  343,  70  C.  C.  A. 
23.  Affirmed,  without  discussing  above  proposition.  Penn. 
Refining  Co.  v.  Western  N.  Y.  &  P.  R.  Co.,  208  U.  S.  208,  52 
L.  Ed.  456,  28  Sup.  Ct. 

AVhat  a  plaintiff  must  show  in  order  to  recover.  Kmidsen- 
Ferguson  Fruit  Co.  v.  Mich.  Cent.  R.  Co.,  148  Fed.  968.  974. 
Petition  for  writ  of  certiorari  denied.  Must  be  protest  before  re- 
covery when  rate  duly  published.  Knudsen-Ferguson  Fruit  Co. 
V.  Chicago.  St.  P.,  M.  &  0.  Ry.  Co.,  149  Fed.  973,  79  C.  C.  A. 
483.  Petition  for  writ  of  certiorari  denied.  204  U.  S.  670,  51 
L.  Ed.  672.  Carrier  may  be  compelled  to  produce  books  on  the 
trial  of  a  case  hereunder.  International  Coal  INIining  Co.  v. 
Penn.  R.  Co.,  152  Fed.  557.  When  trial  before  the  court,  the  re- 
port of  the  commission  upon  which  the  action  is  based  may  be 
received  in  evidence,  commission's  finding  prima  facie  true.  So. 
Ry.  Co.  v.  St.  Louis  Hay  &  Grain  Co.,  153  Fed.  728,  affirming 
149  Fed.  609.  Reversed  because  the  commission  erred  in  the 
law  applied  by  it  and  remanded  to  send  the  matter  back  to  the 
commission.  214  U.  S.  297.  53  L.  Ed.  ,  Sup.  Ct.  .  A 
suit  for  damages  for  discrimination  not  alleging  that  the  charges 
are  not  in  accordance  with  the  published  schedules  is  not  one 
arising  under  the  interstate  commerce  law.  Clement  v.  L.  & 
N.  R.  Co.,  153  Fed.  979.  Can  recover  in  court  when  full  tariff 
rate  is  paid  and  a  less  rate  charged  plaintiffs  competitors,  but 
cannot  recover  when  only  the  tariff'  rate  is  collected,  although 
such  rate  is  fixed  by  combination,  without  first  applying  to  the 
eommissi(m.  American  Union  Coal  Co.  v.  Penn.  R.  Co.,  159  Fed. 
278.  When  a  bond  is  given  to  dissolve  an  injunction  against  a 
rate  subsequently  declared  unlawful,  persons  paying  the  illegal 
rate  may  intervene  and  participate  in  the  proceeds  to  be  collect- 
ed upon  the  bond.  Tift  v.  So.  Ry.  Co.,  159  Fed.  555.  In  a  suit 
for  damages  in  a  circuit  coiu't,  the  i)rint(Ml  and  published  rates 
are  legal  unless  declared  by  the  commission  to  be  illegal.  IMeoker 
v.  Lehigh  V.  R.  Co.,  162  Fed.  354.  liemedy  by  suit  or  complaint 
under  these  sections  inadequate.  ]\Iacon  Grocery  Co.  v.  All;iiitic 
C.  L.  R.  Co..  163  Fed.  738.  Reversed.  Atlaiilie  C.  L.  K.  Co.  v. 
Macon  Grocery  Co.,  166  Fed.  206,        C.  C.  A.        .    Shipper  can- 


442  Acts  Eegui.ating  Commerce.  [§  529, 

not  iu  the  abseuce  of  a  statute  recover  for  discrimination  if 
he  has  paid  no  more  than  a  reasonable  rate,  and  when  suit  is 
brought  under  the  statute,  it  is  the  nature  of  a  suit  for  a  pen- 
alty and  plaintiff  must  clearly  and  distinctly  show  a  violation. 
Cannot  recover  for  failure  to  publish  a  tariff  without  showing 
that  advantage  would  have  been  taken  of  the  tariff'  if  it  had  been 
published.  Parsons  v.  Chicago  &  N.  W.  R.  Co.,  167  U.  S.  447, 
42  L.  Ed.  231,  17  Sup.  Ct.  887.  The  first  proposition  above 
quoted  appears  inconsistent  with  the  opinion  in  Western  Union 
Tel.  Co.  V.  Call  Printing  Co.,  181  U.  S.  92,  45  L.  Ed.  765,  21  Sup. 
Ct.  561,  supra.  A  shipper  cannot  recover  in  a  state  court  for  hav- 
ing paid  an  unreasonable  rate  prior  to  a  determination  by  the  In- 
terstate Commerce  Commission  that  the  rate  paid  is  unreason- 
able. Tex.  &  Pac.  Ry.  Co.  v.  Abilene  Cotton  Oil  Co.,  204  U.  S. 
426,  51  L.  Ed.  553,  27  Sup.  Ct.  350.  The  court,  however,  is  not 
because  of  this  rule  required  to  say  that  a  suit  in  equity  to  pre- 
vent an  illegal  advance  is  also  forbidden.  So.  Ry.  Co.  v.  Tift, 
206  U.  S.  428,  51  L.  Ed.  1125,  27  Sup.  Ct.  709.  Commission's 
order  set  aside  and  the  facts  held  not  to  constitute  illegal  dis- 
crimination. Penn  Refining  Co.  v.  Western  N.  Y.  &  P.  R.  Co., 
208  U.  S.  208,  52  L.  Ed.  456,  28  Sup.  Ct.  Suit  for  damages  for 
a  violation  of  the  interstate  commerce  act  cannot  be  maintained 
in  a  state  court.  Fitzgerald  v.  Fitzgerald  etc.  Construction  Co., 
41  Neb.  374,  51  N.  W.  838 ;  Copp  v.  L.  &  N.  R.  Co.,  43  L.  Ann. 
511,  9  So.  441,  3  I.  C.  R.  625,  46  Am.  &  Eng.  R.  cases  634;  Gulf 
C.  &  S.  F.  Ry.  Co.  V.  I\roore,  98  Tex.  302,  83  S.  W.  363 ;  Wabash 
R.  Co.  V.  Sloop,  200  Mo.  198,  98  S.  W.  607.  But  may  maintain  a 
suit  on  the  common  law  right  to  have  transportation  at  reasonable 
rates.  Holliday  Milling  Co.  v.  Louisiana  &  N.  W.  R.  Co.,  80 
Ark.  536,  98  S.  AA^.  374.  Overcharges  on  an  interstate  shipment 
paid  prior  to  the  act  not  recoverable  in  a  state  court.  Gatton 
V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  95  Iowa  112,  63  N.  ^^\  589,  28 
L.  R.  A.  556,  5  I.  C.  R.  474.  A  judgment  for  an  unjust  rate 
voluntarily  paid  cannot  be  recovered.  Strough  v.  New  York  C. 
&  H.  R.  R.  Co.,  87  N.  Y.  Sup.  30,  92  App.  Div.  584.  Affirmed. 
181  N.  Y.  533,  73  N.  E.  1133.  I\ray  sue  in  a  federal  court  for 
damages  caused  by  a  violation  of  section  2  without  prior  action 
by  the  commission.  Lyne  v.  Delaware,  L.  &  W.  R.  Co.,  170  Fed. 
847. 

§  529.     Penalties  for  violations  of  the  act. — That  any  common 
carrier  subject  to  the  provisions  of  this  act,  or,  whenever  such 


§  529.]  Acts  Regulating  Commerce.  443 

common  carrier  is  a  corporation,  any  director  or  officer  thereof, 
or  any  receiver,  trustee,  lessee,  agent,  or  person,  acting  for  or 
employed  by  such  corporation,  who,  alone  or  with  any  other  cor- 
poration, company,  person  or  party,  shall  wilfully  do  or  cause 
to  be  done,  or  shall  willingly  suffer  or  permit  to  be  done,  any 
act,  matter,  or  thing  in  this  act  prohibited  or  declared  to  be 
unlawful,  or  who  shall  aid  or  abet  therein,  or  shall  wilfully  omit 
or  fail  to  do  any  act,  matter,  or  thing  in  this  act  required  to  be 
done,  or  shall  cause  or  willingly  suffer  or  permit  any  act,  mat- 
ter, or  thing  so  directed  or  required  by  this  act  to  be  done  not 
to  be  so  done,  or  shall  aid  or  abet  any  such  omission,  or  failure, 
or  shall  be  guilty  of  any  infraction  of  this  act,  or  shall  aid  or 
abet  therein,  shall  be  deemed  guilty  of  a  misdemeanor,  and 
shall,  upon  conviction  thereof  in  any  district  court  of  the  United 
States  within  the  jurisdiction  of  which  such  offense  was  com- 
mitted, be  subject  to  a  fine  of  not  to  exceed  five  thousand  dol- 
lars for  each  offense:  Provided,  That  if  the  offense  for  which 
any  person  shall  be  convicted  as  aforesaid  shall  be  an  unlawful 
discrimination  in  rates,  fares  or  charges,  for  the  transportation 
of  passengers  or  property,  such  person  shall,  in  addition  to  the 
fine  hereinbefore  provided  for,  be  liable  to  imprisonment  in  the 
penitentiary  for  a  term  of  not  exceeding  two  years,  or  both  such 
fine  and  imprisonment,  in  the  discretion  of  the  court. 

Section  ten  of  the  original  act,  with  the  proviso  added  bj^  act 
March  2,  1889,  being  paragraph  one  of  section  ten  of  present 
act. 

The  commission  has  no  power  to  enforce  penalties,  the  penal 
provisions  being  enforcible  only  in  the  courts.  Slater  v.  N. 
Pac.  R.  Co.,  2  I.  C.  C.  R.  359,  2  I.  C.  R.  243.  Sufficient  to  show 
that  the  agent  charged  had  general  charge  of  a  freight  office  of 
the  carrier  violating  the  act.  United  States  v.  Tozer,  37  Fed. 
635,  39  Fed.  369.  Reversed.  Tozer  v.  United  States,  52  Fed. 
917.  A  corporation  cannot  be  convicted  of  a  crime  and  the  agent 
must.be  one  who  knowingly  aids  or  abets  the  violation  and  not 
a  mere  clerk.  United  States  v.  Mich.  Cent.  R.  Co.,  43  Fed.  26. 
Corporations  not  criminally  liable.  Re  Peasley,  44  Fed.  271. 
P>ut  see  imder  act  ]903  Re  Pooling  Freights,  115  Fed.  588.  The 
offense  is  committed  when  the  voucher  for  rebate  is  signed  and 
not  when  the  payment  is  made.  United  States  v.  Fowkes,  53 
Fed.  13,  3  C.  C.  A.  394.  An  agent  who  merely  collects  rates 
and  has  nothing  to  do  with  fixing  rates  is  not  indictable.    United 


444  Acts  REGrLATiNG  Commerce.  '  [§530. 

States  V.  Mellen.  53  Fed.  229.  233.  Coniinon  carrier  not  a  cor- 
poration indictable,  but  not  so  a  corporation.  Toledo,  A.  A.  & 
N.  M.  Ry.  Co.  V.  Penn.  Co.,  54  Fed.  730,  736,  19  L.  R.  A.  387, 
5  I.  C.  R.  545,  22  U.  S.  App.  561.  A  combination  to  defeat 
the  provisions  of  the  act  to  regulate  commerce  is  within  this 
section.  Waterhonse  v.  Comer,  55  Fed.  149,  157,  19  L.  R.  A.  403, 
1  Fed.  Anti-Trust  Dec.  119.  No  penalties  before  amendment  of 
1889.  United  States  v.  Howell,  56  Fed.  21.  The  receiver  of  a 
rebate  not  a  criminal  muler  the  old  law.  United  States  v.  Han- 
ley,  71  Fed.  672.  What  should  be  stated  in  an  indictment  for 
discriminati(m.  United  States  v.  DeCoursey,  82  Fed.  302.  An 
indictment  mider  this  section  for  discrimination  in  failing  to 
furnish  switch  connections  must  allege  that  such  connection  is 
practicable.    United  States  v.  B.  &  0.  R.  Co.,  153  Fed.  997. 

§  530.  Penalties  for  false  billing,  false  classification,  false 
weighing,  etc.,  by  carriers. — Any  common  carrier,  subject  to  the 
provisions  of  this  act,  or  whenever  such  common  carrier  is  a 
corporation,  any  officer  or  agent  thereof,  or  any  person  acting 
for  or  employed  by  such  corporation,  who,  by  means  of  false 
billing,  false  classification,  false  weighing,  or  false  report  of 
w^eight.  or  by  any  other  device  or  means,  shall  knowingly  and 
willfully  assist,  or  shall  willingly  suffer  or  permit,  any  person 
or  persons  to  obtain  transportation  for  property  at  less  than  the 
regular  rates  then  established  and  in  force  on  the  line  of  trans- 
portation of  such  common  can-ier,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  shall,  upon  conviction  thereof  in  any  court 
of  the  United  States  of  competent  jurisdiction  within  the  dis- 
trict in  which  such  offense  was  committed,  be  subject  to  a  fine 
not  exceeding  five  thousand  dollars,  or  imprisonment  in  the 
penitentiary  for  a  term  of  not  exceeding  two  years,  or  both,  in 
the  discretion  of  the  court,  for  each  offense. 

Paragraph  two,  section  ten,  of  act  as  amended  by  act  :\Iarch 
2,  1889. 

Necessity  for  this  enactment  suggested.  Re  Underbilling.  1 
I.  C.  C.  R.  633,  1  I.  C.  R.  813,  820. 

§  531.  Penalties  against  shippers  for  false  billing,  etc. — Any 
person  and  any  officer  or  agent  of  any  corporation  or  company 
who  shall  deliver  property  for  transportation  to  any  common 
carrier,  subject  to  the  provisions  of  this  act.  or  for  whom  as  con- 
signor or  consignee  any  such  carrier  shall  transport  property, 
who  shall  knowingly  and  willfully,  by  false  billing,  false  class- 


§  532.]  Acts  Regulating  Commerce.  445 

ification,  false  weighing,  false  representation  of  the  contents  of 
the  package,  or  false  report  of  weight,  or  by  any  other  device 
or  means,  whether  with  or  without  the  consent  or  connivance  of 
the  carrier,  its  agent  or  agents,  obtain  transportation  for  such 
property  at  less  than  the  regular  rates  then  established  and  in 
force  on  the  line  of  transportation,  shall  be  deemed  guilty  of 
fraud,  which  is  hereby  declared  to  be  a  misdemeanor,  and  shall, 
upon  conviction  thereof  in  any  court  of  the  United  States  of 
competent  jurisdiction  within  the  district  in  which  such  offense 
was  committed,  be  subject  for  each  offense  to  a  fine  of  not  ex- 
ceeding five  thousand  dolhirs  or  imprisonment  in  the  peniten- 
tiary for  a  term  of  not  exceeding  two  years,  or  both,  in  the  dis- 
cretion of  the  court. 

Paragraph  three  of  section  ten  added  by  the  act  of  March  2, 
1889. 

The  intention  of  the  act  was  to  protect  carriers  as  well  as  ship- 
pers. Page  V.  Delaware,  L.  &  W.  R.  Co.,  6  I.  C.  C.  R.  148,  166, 
4  I.  C.  R.  525.  534.  Order  not  enforced.  Int.  Com.  Com.  v. 
Delaware,  L.  &  AY.  R.  Co.,  64  Fed.  723.  The  purpose  of  the 
enactment  stated.  United  States  v.  Howell,  56  Fed.  21,  24. 
A  rebate  under  act  jNIarch  2,  1889,  is  not  illegal  imless  granted 
to  some  and  refused  to  others  in  like  situation.  United  States 
V.  Hanley,  71  Fed.  672.  Crime  is  committed  at  the  place  where 
the  consignor  obtains  the  false  billing.  Re  Belknap,  96  Fed. 
614;  Davis  V.  United  States,  104  Fed.  136,  43  C.  C.  A.  448. 

§  532.  Penalties  and  damages  for  inducing  discriminations. — 
If  any  such  person,  or  any  officer  or  agent  of  any  such  corpora- 
tion or  company,  shall,  by  payment  of  money  or  other  thing  of 
value,  solicitation,  or  otherwise,  induce  any  common  carrier  sub- 
ject to  the  provisions  of  this  act,  or  any  of  its  officers  or  agents, 
to  discriminate  unjustly  in  his,  its,  or  their  favor  as  against  any 
other  consignor  or  consignee  in  the  transportation  of  propert3^ 
or  shall  aid  or  abet  any  common  carrier  in  any  such  unjust  dis- 
crimination, such  person  or  such  officer  or  agent  of  such  corpora- 
tion or  company  shall  be  deemed  guilty  of  a  misdemeanor,  and 
slia]].  upon  conviction  in  any  court  of  the  United  States  of  com- 
petent jiu'isdiction  Avithin  tlie  district  in  which  such  offense  was 
connnitted,  be  subject  to  a  fine  of  not  exceeding  five  thousand 
dollars,  or  imprisonment  in  the  |)('Tiitentiary  for  a  term  of  not 
exceeding  two  years,  oi-  bo1li,  in  llic  (liscrdion  of  the  court,  for 
each   offense;   and   such   person,  coi'poraliou.   or   company   sliali 


446  Acts  Regi'lating  Commerce.  [§533. 

also,  together  with  said  common  carrier,  be  liable,  jointly  and 
severally,  in  an  action  on  the  case  to  be  brought  by  any  consignor 
or  consignee,  discriminated  against  in  any  court  of  the  United 
States  of  competent  jurisdiction  for  all  damages  caused  by  or 
resulting  therefrom. 

Paragraph  four  of  section  ten  added  by  act  March  2,  1889. 

Cited.  Washer  Grain  Co.  v.  Uo.  Pac.  Ry.  Co.,  15  I.  C.  C.  R. 
147,  152,  153.  What  should  be  stated  in  an  indictment.  United 
States  V.  Hanley,  71  Fed.  672. 

§  533.  Appointment  and  term  of  office  of  commissioners. — 
That  a  commission  is  hereby  created  and  established  to  be  known 
as  the  Interstate  Commerce  Commission,  which  shall  be  com- 
posed of  seven  commissioners,  who  shall  be  appointed  by  the 
President,  hy  and  with  the  advice  and  consent  of  the  Senate. 
The  commissioners  first  appointed  under  this  act  shall  continue 
in  office  for  the  term  of  two,  three,  four,  five,  and  six  years,  re- 
spectively, from  the  first  day  of  January,  Anno  Domini  eighteen 
lumdred  and  eighty-seven,  the  term  of  each  to  be  designated  by 
the  President;  but  their  successors  shall  be  appointed  for  terms 
of  seven  years,  except  that  any  person  chosen  to  fill  a  vacancy 
shall  be  appointed  only  for  the  unexpired  time  of  the  commis- 
sioner whom  he  shall  succeed.  Any  commissioner  may  be  re- 
moved by  the  President  for  inefficiency,  neglect  of  duty,  or  mal- 
feasance in  office.  Not  more  than  four  of  the  commissioners  shall 
be  appointed  from  the  same  political  party.  No  person  in  the 
employ  of  or  holding  any  official  relation  to  any  common  carrier 
subject  to  the  provisions  of  this  act,  or  owning  stock  or  bonds 
thereof,  or  who  is  in  any  manner  pecuniarly  interested  therein, 
shall  enter  upon  the  duties  of  or  hold  such  office.  Said  commis- 
sioners shall  not  engage  in  any  other  business,  vocation,  or  em- 
ployment. No  vacancy  in  the  commission  shall  impair  the  right 
of  the  remaining  commissioners  to  exercise  all  the  powers  of  the 
commission. 

Section  eleven  of  original  act,  except  as  will  appear  from  sec- 
tion twenty-four  added  by  the  act  of  June  29,  1906,  the  number 
of  commissioners  were  increased  from  five  to  seven,  and  this  sec- 
tion has  consequently  been  copied  to  conform  to  the  provisions  of 
section  twenty-four. 

The  commission  is  a  body  corporate,  with  power  to  sue  and 
be  sued.  Int.  Com.  Com.  v.  B.  &  0.  R.  Co..  345  U.  S.  263,  36 
L.  Ed.  699,  12  Sup.  Ct.  844 ;  Int.  Com.  Com.  v.  A.  T.  &  S.  F.  Ry. 


§  534.]  Acts  Kegulating  Commerce.  447 

Co.,  149  U.  S.  264,  37  L.  Ed.  727,  13  Sup.  Ct.  837 ;  Tex.  &  Pac. 
K.  Co.  V.  Int.  Com.  Com.,  162  U.  S.  197,  40  L.  Ed.  940,  16  Sup. 
Ct.  666. 

§  534.  Power  and  duty  of  commissioners. — That  the  commis- 
sion hereby  created  shall  have  authority  to  inquire  into  the 
management  of  the  business  of  all  common  carriers  subject  to 
the  provisions  of  this  act,  and  shall  keep  itself  informed  as  to  the 
manner  and  method  in  which  the  same  is  conducted,  and  shall 
have  the  right  to  obtain  from  such  common  carriers  full  and 
complete  information  necessary  to  enable  the  commission  to  per- 
form the  duties  and  carry  out  the  objects  for  which  it  was 
created;  and  the  commission  is  hereby  authorized  and  required 
to  execute  and  enforce  the  provisions  of  this  act;  and,  upon 
the  request  of  the  commission,  it  shall  be  the  duty  of  any  dis- 
trict attorney  of  the  United  States  to  whom  the  commission  may 
apply  to  institute  in  the  proper  court  and  to  prosecute  under 
the  direction  of  the  Attorney-General  of  the  United  States  all 
necessary  proceedings  for  the  enforcement  of  the  provisions  of 
this  act  and  for  the  punishment  of  all  violations  thereof,  and 
the  costs  and  expenses  of  such  prosecution  shall  be  paid  out  of 
the  appropriation  for  the  expenses  of  the  courts  of  the  United 
States;  and  for  the  purposes  of  this  act  the  commission  shall 
have  power  to  require,  by  subpoena,  the  attendance  and  testi- 
mony of  witnesses  and  the  production  of  all  books,  papers,  tar- 
iffs, contracts,  agreements,  and  documents  relating  to  any  matter 
under  investigation. 

Such  attendance  of  witnesses,  and  the  production  of  such  doc- 
umentary evidence,  may  be  required  from  any  place  in  the 
United  States,  at  any  designated  place  of  hearing.  And  in  case 
of  disobedience  to  a  subpoena  the  commission,  or  any  party  to  a 
proceeding  before  the  commission,  may  invoke  the  aid  of  any 
court  of  the  United  States  in  requiring  the  attendance  and  testi- 
mony of  witnesses  and  the  prodviction  of  books,  papers,  and  doc- 
uments under  the  provisions  of  this  section. 

First  two  paragraphs  of  section  twelve  as  enacted  by  act  of 
February  10,  1891,  enlarging  somewhat  the  original  act  and  the 
amendment  of  March  2,  1889. 

The  original  act  covering  this  section  read: 

"That  the  commission  hereby  created  shall  have  jiulliofily  to 
inquire  into  the  management  oi"  1he  business  of  all  conimon  car- 
riers subject  to  the  provisions  of  this  act,  and  shall  keep  itself 


448  Acts  Regulating  Commerce.  [§  534. 

informed  as  to  the  manner  and  method  in  which  the  same  is 
conducted,  and  shall  liave  the  right  to  ohtain  from  such  common 
carriers  full  and  complete  informaticm  necessary^  to  ;mal)le  the 
commission  to  perform  the  duties  and  carry  out  the  objects  for 
which  it  was  created ;  and  for  the  purposes  of  this  act  the  com- 
mission shall  have  power  to  require  the  attendance  ami  testi- 
mony of  witnesses  and  the  production  of  all  books,  papers,  tar- 
iffs, contracts,  agreements,  and  documents  relating  to  any  matter 
under  investigation,  and  to  that  end  may  invoke  the  aid  of  any 
court  of  the  United  States  in  requiring  the  attendance  and  tes- 
timony of  witnesses  and  the  production  of  books,  papers,  and 
documents  under  the  provisions  of  this  section." 

The  act  of  1889  is  as  follows : 

"That  the  conmiission  hereby  created  shall  have  authority  to 
inquire  into  the  management  of  the  business  of  all  common  car- 
riers subject  to  the  provisions  of  this  act,  and  shall  keep  itself 
informed  as  to  the  manner  and  method  in  which  the  same  is 
conducted,  and  shall  have  the  right  to  obtain  from  such  com- 
mon carriers  full  and  complete  information  necessary  to  enable 
the  commission  to  perform  the  duties  and  carrj^  out  the  ob- 
jects for  which  it  was  created;  and  the  commission  is  hereby 
authorized  and  required  to  execute  and  enforce  the  provisions 
of  this  act ;  and,  upon  the  request  of  the  commission,  it  shall  be 
the  duty  of  any  district  attorney  of  the  United  States  to  whom 
the  commission  may  apply  to  institute  in  the  proper  court  and  to 
prosecute,  imder  the  direction  of  the  Attorney-General  of  the 
United  States,  all  necessary  proceedings  for  the  enforcement  of 
the  provisions  of  this  act,  and  for  the  punishment  of  all  viola- 
tions thereof;  and  the  costs  and  expenses  of  such  prosecution 
shall  be  paid  out  of  the  appropriation  for  the  expenses  of  the 
courts  of  the  United  States ;  and  for  the  purposes  of  this  act  the 
commission  shall  have  the  power  to  require,  by  subpa?na,  the  at- 
tendance and  testimony  of  w^itnesses  and  the  production  of  all 
books,  papers,  tariffs,  contracts,  agreements,  and  documents  re- 
lating to  any  matter  under  investigation,  and  in  case  of  diso- 
bedience to  a  subpoena,  the  commission,  or  any  party  to  a  pro- 
ceeding before  the  commission,  may  invoke  the  aid  of  any  court 
of  the  United  States  in  requiring  the  attendance  and  testimony 
of  witnesses  and  the  production  of  books,  papers,  and  documents 
under  the  provisions  of  this  section." 

Practice  for  complainant  to  obtain  production  of  books.     Rice 


§  534.]  Acts  Regulating  Commerce.  449 

V.  Cincinnati,  W.  &  B.  R.  Co.,  3  I.  C.  C.  R.  186,  2  I.  C.  R.  584, 
594.  Application  to  require  production  of  the  papers  of  third 
persons  not  before  the  commission  denied.  Haddock  v.  Dela- 
ware, L.  &  W.  R.  Co.,  4  I.  C.  C.  R.  296,  3  I.  C.  R.  302.  The 
commission  is  vested  with  only  administrative  powers,  which 
fall  far  short  of  making  it  a  court.  Kentucky  &  I.  Bridge  Co. 
V.  L.  &  N.  R.  Co.,  37  Fed.  567,  612,  613.  The  Interstate  Com- 
merce Commission  is  an  administrative  body  and  the  act  au- 
thorizing the  courts  to  aid  the  commission  with  process  to  com- 
pel a  response  to  the  subpcpna  of  the  commission  is  unconstitu- 
tional. Re  Interstate  Commerce  Commission,  Application  for 
Order  Against  Brimson  et.  al..  53  Fed.  476,  481.  Reversed, 
holding  section  constitutional.  Int.  Com.  Com.  v.  Brimson,  154 
U.  S.  477,  38  L.  Ed.  1047,  14  Sup.  Ct.  1125.  Bill  in  equity  filed 
in  name  of  commission,  its  duties  stated.  Int.  Com.  Com.  v. 
Detroit,  G.  H.  &  M.  Ry.  Co.,  57  Fed.  1005,  4  I.  C.  R.  722.  Re- 
versed. 74  Fed.  803,  21  C.  C.  A.  103,  43  U.  S.  App.  308,  167 
U.  S.  633,  42  L.  Ed.  306,  17  Sup.  Ct.  986.  Not  necessary  in 
suits  to  enforce  the  orders  of  the  commission  to  file  the  testimony 
taken  before  it,  but  when  such  testimony  was  taken  on  notice,  it 
may  be  offered  by  either  party.  Int.  Com.  Com.  v.  Cincinnati, 
N.  0.  &  T.  P.  R.  Co.,  64  Fed.  981,  13  U.  S.  App.  700.  But  the 
mere  opinion  of  the  commission  is  not  admissable  as  evidence. 
Western  N.  Y.  &  P.  R.  Co.  v.  Penn  Refining  Co.,  137  Fed.  343, 
70  C.  C.  A.  23.  Affirmed.  Penn  Refining  Co.  v.  Western  N.  Y. 
&  P.  R.  Co.,  208  U.  S.  208,  52  L.  Ed.  456,  28  Sup.  Ct.  .  Pro- 
ceedings in  the  name  of  the  United  States  are  authorized  by  this 
section  without  a  preliminary  investigation  by  the  commission. 
United  States  v.  Mo.  Pac.  Ry.  Co.,  65  Fed.  903.  Reversed.  Mo. 
Pac.  Ry.  Co.  v.  United  States,  189  U.  S.  274,  47  L.  Ed.  811,  23 
Sup.  Ct.  507.  Suit  brought  by  authority  of  section.  United 
States  V.  Joint  Traffic  Asso.,  76  Fed.  895,  1  Fed.  Anti-Tr.  Dec. 
615.  Affirmed,  Circuit  Court  Appeals,  89  Fed.  1020,  32  C.  C. 
A.  491,  45  U.  S.  App.  726,  1  Fed.  Anti-Trust  Dec.  869.  See  de- 
cision of  Supreme  Court,  post,  this  section.  Section  quoted  in 
discussing  the  refusal  of  a  witness  to  answer  in  an  investigation 
by  a  grand  jury  of  violations  of  the  act.  Counselman  v.  Hitch- 
cock, 142  U.  S.  547,  35  L.  Ed.  1110,  1113,  12  Sup.  Ct.  195.  After 
this  decision  the  immunity  act  of  February  11,  1893,  was  passed. 
Section  twelve  is  constitutional.  Int.  Com.  Com.  v.  Brimson, 
154  U.  S.  447,  38  L.  Ed.  1047,  14  Sup.  Ct.  1125;  Int.  Com.  Com. 


450  Acts  Regulating  Commerce.  [§535. 

V.  Baird.  194  U.  S.  25,  48  L.  Ed.  860,  24  Sup.  Ct.  563.  Upon  an 
inquiry  by  the  commission,  carriers  should  not  withhold  their 
evidence  and  present  it  later  before  the  court  on  a  suit  to  en- 
force the  order  of  the  commission.  Cincinnati,  N.  0.  &  T.  P.  Ry. 
Co.  V.  Int.  Com.  Cora.,  162  U.  S.  184,  40  L.  Ed.  935,  16  Sup.  Co. 
700.  The  commission  may  be  a  party  plaintiff  or  defendant. 
Tex.  &  Pac.  Ry.  Co.  v.  Int.  Com.  Com.,  162  U.  S.  197,  40  L.  Ed. 
940,  16  Sup.  Ct.  666.  A  suit  to  enjoin  a  carrier  from  violating 
the  act  to  regulate  commerce  could  not  be  brought  by  the  United 
States  at  the  request  of  the  commission  prior  to  the  act  of  Feb- 
ruary 19,  1903.  Mo.  Pac.  Ry.  Co.  v.  United  States,  189  U.  S. 
274,  47  Fed.  811,  23  Sup.  Ct.  507.  Prior  to  the  Hepburn  Act 
the  commission  had  no  power  to  fix  rates.  Int.  Com.  Com.  v. 
Cincinnati,  N.  0.  &  T.  P.  R.  Co.,  167  U.  S.  479,  42  L.  Ed.  243, 
17  Sup.  Ct.  896.  This  case  was  subsequently  followed  by  other 
cases  citing  the  principal  case.  Nor  did  the  commission  have 
power  to  fix  joint  through  routes.  Int.  Com.  Com.  v.  Western 
of  A.  R.  Co.,  93  Fed.  83,  35  C.  C.  A.  217,  181  U.  S.  29,  45  L. 
Ed.  729,  21  Sup.  Ct.  512.  See  also  Ky.  &  I.  B.  Co.  v.  L.  &  N. 
R.  Co.,  37  Fed.  567,  2  I.  C.  R.  351;  Little  Rock  &  M.  R.  Co.  v. 
St.  Louis  &  S.  W.  R.  Co.,  41  Fed.  559 ;  Little  Rock  &  M.  R.  Co. 
V.  East  Tenn.,  Va.  &  Ga.  Ry.  Co.,  47  Fed.  771;  Chicago  &  N. 
W.  Ry.  Co.  V.  Osborne,  52  Fed.  912,  3  C.  C.  A.  347, 10  U.  S.  App. 
430;  Union  P.  R.  Co.  v.  United  States,  117  U.  S.  355,  29  L.  Ed. 
920,  6  Sup.  Ct.  772.  The  commission  an  administrative  body. 
Cincinnati,  N.  0.  &  T.  P.  R.  Co.  v.  Int.  Com.  Com.,  162  U.  S. 
184,  40  L.  Ed.  935,  16  Sup.  Ct.  700.  The  powers  exercised  by 
the  commission  being  analogous  to  a  referee  or  special  com- 
missioner. Ky.  &  I.  Bridge  Co.  v.  L.  &  N.  R.  Co.,  37  Fed.  567. 
Its  powers  are,  however,  quasi  judicial.  Int.  Com.  Com.  v.  Cin- 
cinnati, N.  0.  &  T.  P.  R.  Co.,  167  U.  S.  479.  42  L.  Ed.  243,  17 
Sup.  Ct.  896.  Can  not  require  the  attendance  of  witnesses  ex- 
cept on  complaints  or  on  investigations  of  subjects  that  might 
become  the  basis  of  a  complaint.  Harriman  v.  Int.  Com.  Com., 
211  U.  S.  407.  53  L.  Ed.        .  29  Sup.  Ct.  115. 

§  535.  Power  of  courts  to  punish  for  disobedience,  witness  not 
excused  because  testimony  may  incriminate. — And  any  of  the  cir- 
cuit courts  of  the  T'nited  States  within  the  jurisdiction  of  which 
such  inquiry  is  carried  on  may,  in  case  of  contumacy  or  refusal 
to  obey  a  subpoena  issued  to  any  common  carrier  subject  to  the 
provisions  of  this  act,  or  other  person,  issue  an  order  requiring 


§  536.]  Acts  Regulating  Commerce.  451 

such  common  carrier  or  other  person  to  appear  before  said  com- 
mission and  produce  books  and  papers  if  so  ordered  and  give 
evidence  touching  the  matter  in  question ;  and  any  failure  to 
obey  such  order  of  the  court  may  be  punished  by  such  court  as 
a  contempt  thereof.  The  ehiim  that  any  such  testimony  or  evi- 
dence may  tend  to  criminate  the  person  giving  such  evidence 
shall  not  excuse  such  witness  from  testifying ;  but  such  evidence 
or  testimony  shall  not  be  used  against  such  person  on  the  trial 
of  any  criminal  proceeding. 

Paragraph  three  of  section  twelve,  being  paragraph  two  of 
said  section  in  original  act.  See  immunity  act,  act  February  11, 
1893,  post,  §  581. 

An  officer  of  a  carrier,  not  himself  incriminated  by  the  docu- 
ments, must  respond  to  a  notice  to  produce.  Re  Peasley,  44  Fed. 
271.  Provision  giving  court  power  to  piuiish  disobedience  to  the 
subpoena  of  the  commission  unconstitutional.  Re  Interstate  Com- 
merce Commission  Application  for  Order  Against  W.  G.  Brim- 
son  et  al.,  53  Fed.  476,  481.  Reversed,  holding  section  valid. 
Int.  Com.  Com.  v.  Brimson,  154  U.  S.  447,  38  L.  Ed.  1047,  14 
Sup.  Ct.  1125.  The  commission  has  plenary  power  to  institute 
an  investigation  into  any  matter  within  its  jurisdiction,  and  on 
such  investigation  to  require  the  attendance  of  witnesses  and  the 
production  of  papers.  Int.  Com.  Com.  v.  Harriman,  157  Fed. 
432.  Reversed  in  part,  holding  that  testimony  could  only  be  re- 
quired in  connection  with  complaints  or  upon  the  investigation 
of  subjects  that  might  be  made  the  object  of  a  complaint.  Har- 
riman V.  Int.  Com.  Com.,  211  U.  S.  407,  53  L.  Ed.  ,  29  Sup. 
Ct.  115. 

§  536.  Right  to  take  testimony  by  deposition  and  the  manner 
thereof  prescribed. — The  testimony  of  any  witness  may  be  taken, 
at  the  instance  of  a  party  in  any  proceeding  or  investigation  de- 
pending before  the  commission,  by  deposition,  at  any  time  after 
a  cause  or  proceeding  is  at  issue  on  petition  and  answer.  The 
commission  may  also  order  testimony  to  be  taken  by  deposition 
in  any  proceeding  or  investigation  pending  before  it,  at  any 
stage  of  such  proceeding  or  investigation.  Such  depositions  may 
be  taken  before  any  judge  of  any  court  of  the  United  States,  or 
any  commissioner  of  a  circuit,  or  any  clerk  of  a  district  or  cir- 
cuit court,  or  any  chancellor,  justice,  or  judge  of  a  supreme  or 
superior  court,  mayor  or  chief  magistrate  of  a  city,  judge  of  a 
county  court,  or  court  of  common  pleas  of  any  of  the  United 


452  Acts  Regulating  Commerce.  [§  537. 

States,  or  any  notan^  public,  not  being  of  counsel  or  attorney  to 
either  of  the  parties,  nor  interested  in  the  event  of  the  proceed- 
ing or  investigation.  Reasonable  notice  nuist  first  be  given  in 
writing  by  the  party,  or  his  attorney,  proposing  to  take  such 
deposition  to  the  opposite  party  or  his  attorney  of  record,  as 
either  may  be  nearest,  wliich  notice  shall  state  the  name  of  the 
witness  and  the  time  and  place  of  the  taking  of  his  deposition. 
Any  person  may  be  compelled  to  appear  and  depose,  and  to  pro- 
duce documentary  evidence,  in  the  same  manner  as  witnesses 
may  be  compelled  to  appear  and  testify  and  produce  documen- 
tary evidence  before  the  commission  as  hereinbefore  provided. 

Every  person  deposing  as  herein  provided  shall  be  cautioned 
and  sworn,  or  affirm,  if  he  so  request,  to  testify  the  whole  truth, 
and  shall  be  carefully  examined.  His  testimony  shall  be  re- 
duced to  writing  by  the  magistrate  taking  the  deposition,  or 
under  his  direction,  and  shall,  after  it  has  been  reduced  to  writ- 
ing, be  subscribed  by  the  deponent. 

If  a  witness  whose  testimony  may  be  desired  to  be  taken  by 
deposition  be  in  a  foreign  country,  the  deposition  may  be  taken 
before  an  officer  or  person  designated  by  the  commission,  or 
agreed  upon  by  the  parties  by  stipulation  in  writing  to  be  filed 
with  the  commission.  All  depositions  must  be  promptly  filed 
with  the  commission. 

Witnesses  whose  depositions  are  taken  pursuant  to  this  act, 
and  the  magistrate  or  other  officer  taking  the  same,  shall  sev- 
erally be  entitled  to  the  same  fees  as  are  paid  for  like  services  in 
the  courts  of  the  United  States. 

Last  paragraphs  of  section  twelve,  added  by  the  act  of  Feb- 
ruary 10,  1891. 

See  rule  six  of  Rules  of  Practice,  §§  167,  168.  ante.  Section 
referred  to.  Foster  Bros.  Co.  v.  Duluth  etc.  Ry.  Co.,  14  I.  C. 
C.  R.  232. 

§  537.  Persons  who  may  file  complaints  before  the  commis- 
sion and  practice  with  reference  thereto. — That  any  person,  firm, 
corporation,  or  association,  or  any  mercantile,  agricultural,  or 
manufacturing  society,  or  any  body  politic  or  municipal  organ- 
ization complaining  of  anything  done  or  omitted  to  be  done  by 
any  common  carrier  subject  to  the  provisions  of  this  act  in  con- 
travention of  the  provisions  thereof,  may  apply  to  said  commis- 
sion b}^  petition,  which  shall  brieflj^  state  the  facts;  whereupon 
a  statement  of  the  charges  thus  made  shall  be  forwarded  by  the 


§  537.]  Acts  Regulating  Commerce.  453 

commissioner  to  such  common  carrier,  who  shall  be  called  upon 
to  satisfy  the  complaint  or  to  answer  the  same  in  writing  within 
a  reasonable  time,  to  be  specified  by  the  commission.  If  such 
common  carrier,  within  the  time  specified,  shall  make  reparation 
for  the  injury  alleged  to  have  been  done,  said  carrier  shall  be 
relieved  of  liability  to  the  complainant  only  for  the  particular 
violation  of  law  thus  complained  of.  If  such  carrier  shall  not 
satisfy  the  complaint  within  the  time  specified,  or  there  shall 
appear  to  be  any  reasonable  ground  for  investigating  said  com- 
plaint, it  shall  be  the  duty  of  the  commission  to  investigate  the 
matters  complained  of  in  such  manner  and  by  such  means  as  it 
shall  deem  proper. 

Said  commission  shall  in  like  rnanner  investigate  any  com- 
plaint forwarded  by  the  railroad  commissioner  or  railroad  com- 
mission of  any  state  or  territory,  ait  the  request  of  such  com- 
missioner or  commission,  and  may  institute  any  inquiry  on  its 
o^^^l  motion  in  the  same  manner  and  to  the  same  effect  as  though 
complaint  had  been  made. 

No  complaint  shall  at  any  time  be  dismissed  because  of  the 
absence  of  direct  damage  to  the  complainant. 

Section  thirteen  of  original  act. 

Complaint  of  a  violation  of  the  act  should  be  made  and  not  a 
mere  request  for  a  construction  of  the  law.  Re  Petition  of 
Order  of  Railway  Conductors,  1  I.  C.  C.  R.  8,  1  I.  C.  R.  18; 
Penn.  Co.  v.  Louisville,  N.  A.  &  C.  R.  Co.,  3  I.  C.  C.  R.  223,  2 
I.  C.  R.  603.  When  no  overt  act  in  violation  of  the  law  is 
charged,  complaint  will  be  dismissed.  Holbrook  v.  St.  Paul,  M. 
&  M.  R.  Co.,  1  I.  C.  C.  R.  102,  1  I.  C.  R.  323.  No  replication  to 
answer  required.  Powers  and  Procedure  of  the  Commission.  1 
I.  C.  C.  R.  223,  1  I.  C.  R.  408,  410;  Oregon  Short  Line  v.  N.  Pac. 
R.  Co.,  3  I.  C.  C.  R.  264,  2  I.  C.  R.  639.  Vermont  State  Grange, 
could  intervene  and  complain  against  charges  on  east  bound 
freight,  though  original  complaint  referred  only  to  west  bound 
freight  Boston  &  A.  R.  Co.  v.  Boston  &  L.  R.  Co.,  1  I.  C.  C.  R. 
158,  I.  C.  R.  500,  571.  Where  answer  denies  complaint  and 
comphiinant  fails  to  appear,  complaint  dismissed.  Jackson  v. 
St.  Louis,  A.  &  T.  R.  Co.,  1  I.  C.  R.  599.  New  grievances  can- 
not be  set  up  in  an  amendment.  Riddle,  Dean  &  Co.  v.  B.  &  O. 
R.  Co.,  1  I.  C.  C.  R.  372,  1  I.  C.  R.  701  ;  Delaware  State  Grange 
V.  New  York,  P.  &  N.  R.  Co..  2  T.  C.  C.  R.  309,  2  I.  C.  R.  1S7. 
Rule  as  to  rehearings  stated  by  Judge  Cooley.     Riddle,  Dean  & 


454  Acts  Regulating  Commerce.  [§i337. 

Co.  V.  Pittsburg  &  L.  E.  R.  Co.,  1  I.  C.  C.  R.  400,  1  I.  C.  R.  773. 
Case  not  decided  on  a  theory,  neither  in  the  complaint  nor  the 
evidence.    Martin  v.  Chicago,  B.  &  Q.  R.  Co.,  2  I.  C.  C.  R.  25, 

2  I.  C.  R.  32.  Sufficient  to  make  initial  carrier  a  party  when 
complaining  against  a  classification.  Any  party  at  interest  may 
be  heard  without  formal  intervention.  Ilurlburt  v.  Lake  Shore 
&  M.  S.  R.  Co.,  2  I.  C.  C.  R.  122,  2  I.  C.  R.  81.  Decision  of  the 
commission  applies  to  the  facts  of  the  partic^ular  case.  Re  Rela- 
tive Tank  and  Barrel  Rates.  2  I.  C.  C.  R.  365,  2  I.  C.  R.  245. 
After  a  case  closed,  an  application  from  one  not  a  party  for 
a  rehearing  will  not  be  granted.  Re  Petition  of  Produce  Ex- 
change of  Toledo.  2  I.  C.  C.  R.  588,  2  I.'  C.  R.  412.  Commis- 
sion may  investigate  and  deal  with  violations  of  the  law  without 
formal  complaint.    Re  Investigation  of  Acts  of  Grand  Trmik  Ry. 

3  I.  C.  C.  R.  89,  2  I.  C.  R.  496.  Re  Alleged  Excessive  Rates  on 
Food  Products.  4  I.  C.  C.  R.  48,  116,  3  I.  C.  R.  90,  151.  What  a 
petition  for  rehearing  should  show.  ]\Iyers  v.  Penn.  Co.,  2  I.  C. 
C.  R.  573,  2  I.  C.  R.  403,  544.  Must  allege  that  the  violation 
complained  of  occurred  with  reference  to  an  interstate  ship- 
ment. White  V.  Mich.  Cent.  R.  Co.,  3  I.  C.  C.  R.  281,  2  I.  C.  R. 
641.  Wlien  a  complaint  is  filed  by  a  state  railroad  commission, 
it  will  not  be  dismissed  because  such  commission  is  thereafter 
abolished.  Railroad  Commission  of  Florida  v.  Savannah,  Fla. 
&  W.  R.  Co.,  5  I.  C.  C.  R.  13,  3  I.  C.  R.  688.  Complaint  may  be 
filed  against  a  receiver  of  a  carrier  engaged  in  interstate  com- 
merce. Railroad  Commission  of  Georgia,  Tranunell  et  al.  v. 
Clyde  S.  S.  Co.,  5  I.  C.  C.  R.,  324,  4  I.  C.  R.  120.  Commission 
wdll  take  proof  on  complaint  that  carrier  has  not  answered. 
Tecumseh  Celery  Co.  v.  Cincinnati,  J.  &  M.  Ry.  Co.,  5  I.  C.  C.  R. 
663,  4  I.  C.  R.  318.  Different  groimds  of  an  objection  to  a  rate 
may  be  urged  in  a  second  complaint.  Schumacher  ]\Iilling  Co. 
V.  Chicago,  R.  I.  &  P.  R.  Co.,  6  I.  C.  C.  R.  61,  4  I.  C.  R.  373, 
384.  Notwithstanding  complainant  may  have  violated  the  law, 
commission  will  act  on  complaint  for  benefit  of  public.  Page  v. 
Delaware,  L.  &  W.  R.  Co.,  6  I.  C.  C.  R.  148,  548,  4  I.  C.  R.  525. 
Long  after  complaint  decided  will  not  reopen  for  purpose  of  act- 
ing on  application  for  reparation.  Rice,  R.  &  W.  v.  W.  N.  Y. 
&  Penn.  R.  Co.,  6  I.  C.  C.  R.  455.  Cannot  authoritatively  de- 
termine what  is  not  in  issue  by  pleadings.  Commercial  Club  of 
Omaha  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  6  I.  C.  C.  R.  647.  An  as- 
sociation may  bring  complaint  and  defendants  not  entitled  to  dis- 


§  537.]  Acts  Regulating  Commerce.  455 

missal  because  tliere  is  no  direct  damage  to  complainant.  Milk 
Producers  Protective  Asso.  v.  Delaware,  L.  &  W.  R.  Co.,  6  I.  C. 
C.  R.  92,  163.  Shippers  claim  submitted  by  the  carrier  treated 
as  a  formal  case.  Roth  v.  Tex.  &  Pac.  Ry.  Co.,  9  I.  C.  C.  R.  602. 
Commission  clearly  has  no  right  to  award  damages.  Cattle 
Raisers'  Asso.  of  Texas  v.  Chicago,  B.  &  Q.  R.  Co.,  10  I.  C.  C. 
R.  83.  One  a  party  to  a  case  may  amend  and  claim  reparation. 
id.  105.  Complaints  against  unreasonable  rates  are  in  behalf  of 
the  public  and  complainants  need  not  enter  with  "clean  hands." 
Tift  V.  So.  Ry.  Co.,  10  I.  C.  C.  R.  548,  578.  Order  enforced. 
138  Fed.  753,  123  Fed.  789.  Affirmed.  206  U.  S.  428,  51  L. 
Ed.  1124,  27  Sup.  Ct.  709.  Parties  may  present  a  written  state- 
ment of  facts  and  obtain  the  opinion  of  the  commission  thereon. 
Re  Freight  Rates  Between  Memphis  and  Points  in  Arkansas, 
11  I.  C.  C.  R.  180.  Case  decided  before  amendment  of  June  29, 
1906,  reopened  after  that  amendment  for  further  hearing.  Cat- 
tle Raisers'  Asso.  v.  IMo.,  Kan.  &  Tex.  Ry.  Co.,  12  I.  C.  C.  R.  1. 
But  not  when  complainant  had  waited  for  about  a  year  before 
trying  to  enforce  an  order  which  the  carriers  disobeyed.  Cattle 
Raisers'  Asso.  v.  Chicago,  B.  &  Q.  R.  Co.,  12  I.  C.  C.  R.  6,  507. 
Complaints  must  be  presented  with  reasonable  diligence.  Pro- 
ducers Pipe  Line  Co.  v.  St.  L.,  I.  M.  &  S.  Ry.  Co.,  12  I.  C.  C.  R. 
186.  Reparation  asked  informally  after  hearing  closes  not  con- 
sidered. Dallas  Freight  Bureau  v.  Gulf  C.  &  S.  F.  Ry.  Co.,  12  I. 
C.  C.  R.  223.  Testimony  alone  of  a  person  having  no  interest 
in  or  personal  knowledge  of  the  rate  complained  of  insufficient 
to  sustain  a  complaint.  Dallas  Freight  Bureau  v.  Mo.,  Kan.  & 
Tex.  Ry.  Co.,  12  I.  C.  C.  R.  427.  The  commission,  being  an  ad- 
ministrative body,  is  unencumbered  by  technicalities.  Missouri 
&  Kan.  Shippers'  Asso.  v.  Mo.,  Kan.  &  Tex.  Ry.  Co.,  12  I.  C.  C. 
R.  483.  Each  case  must  be  disposed  of  on  its  own  facts,  and  no 
general  rule  will  be  made  that  through  rates  must  not  exceed  the 
sum  of  the  locals.  Coffeyville  Vitrified  Brick  &  Tile  Co.  v.  St. 
Louis  &  S.  F.  R.  Co.,  12  I.  C.  C.  R.  498.  What  is  an  "associa- 
tion" within  meaning  of  section.  Forest  City  Freight  Bureau 
V.  Ann  Arbor  R.  Co.,  13  I.  C.  C.  R.  118.  A  complaint  for 
reparation  by  a  voluntary  association  must  name  the  members 
and  specify  and  describe  the  shipments  with  reasonable  particu- 
larity, but  see  the  facts  of  tlie  case.  INFo.  &  Kan.  Shippers'  Asso. 
v.  A.  T.  &  S.  F.  Ry.  Co.,  13  T.  C.  C.  R.  411.  Amendment  not 
allowed  to  graft  on  an  aj)plication  for  through  routes  and  joint 


456  Acts  Regulating  Commerce.  [§  538. 

rates  a  claim  for  reparation.  LaSalle  &  Bureau  Co.,  R.  Co.  v. 
Chicago  &  N.  W.  Ry.  Co.,  13  I.  C.  C.  R.  610.  Not  necessary  in 
complaint  for  reparation  to  allege  protest.  Baer  Bros.  Mercan- 
tile Co.  V.  Mo.  Pac.  Ry.  Co.,  13  I.  C.  C.  R.  329 ;  Southern  Pine 
Lumber  Co.  v.  So.  Ry.  Co.,  14  I.  C.  C.  R.  195;  NoUenberger  v. 
Mo.  Pac.  Ry.  Co.,  15  I.  C.  C.  R.  595,  596.  This  section  shows  a 
legislative  intention  to  divorce  proceedings  before  the  commis- 
sion of  all  teclmicalities.  Washer  Grain  Co.  v.  Mo.  Pac.  Ry.  Co., 
15  I.  C.  C.  R.  147,  153.  Cited  arguing  the  power  to  award  repa- 
ration for  past  shipments.  Arkansas  Fuel  Co.  v.  Chicago,  INI. 
&  St.  P.  Ry.  Co.,  16  I.  C.  C.  R.  95.  98.  This  section  prescribed 
procedure  before  commission.  Int.  Com.  Com.  v.  L.  &  N.  R.  Co., 
73  Fed.  409,  414.  An  action  for  mandamus  under  section  twen- 
ty-three will  not  preclude  a  shipper  filing  a  complaint  under 
section  thirteen.  Merchants  Coal  Co.  v.  Fairmont  Coal  Co., 
160  Fed.  769.  When  a  complaint  is  filed  with  the  commission, 
it  must,  if  complaint  presents  matter  within  the  purview  of  the 
act,  investigate  regardless  of  w^hether  or  not  the  complainant 
may  suffer  direct  damage  from  the  act  complained  of.  Int.  Com. 
Com.  V.  Detroit,  G.  H.  &  M.  Ry.  Co.,  57  Fed.  1005,  4  I.  C.  R. 
722.  Reversed  on  other  grounds.  Detroit,  G.  H.  &  M.  Ry.  Co. 
V.  Int.  Com.  Com.,  74  Fed.  803,  21  C.  C.  A.  103,  43  U.  S.  App. 
308.  Circuit  court  of  appeals  affirmed.  Ry.  v.  Com.,  167  U.  S. 
633,  42  L.  Ed.  306,  17  Sup.  Ct.  986.  Int.  Com.  Com.  v.  Baird, 
194  U.  S.  25,  39,  48,  L.  Ed.  860,  867,  24  Sup.  Ct.  563.  See  opin- 
ion circuit  judge.  Int.  Com.  Com.  v.  Philadelphia  &  R.  Ry.  Co., 
123  Fed.  969. 

§  538.  Eeports  of  commission  on  investigations,  how  made  and 
published. — That  whenever  an  investigation  shall  be  made  by 
said  coimnission,  it  shall  be  its  duty  to  make  a  report  in  writing 
in  respect  thereto,  which  shall  state  the  conclusions  of  the  com- 
mission, together  with  its  decision,  order,  or  requirement  in  the 
premises;  and  in  case  damages  are  awarded  such  report  shall 
include  the  findings  of  fact  on  which  the  award  is  made. 

All  reports  of  investigations  made  by  the  commission  shall  be 
entered  of  record,  and  a  copy  thereof  shall  be  furnished  to  the 
party  who  may  have  complained,  and  to  any  common  carrier 
that  may  have  been  complained  of. 

The  commission  may  provide  for  the  publication  of  its  re- 
ports and  decisions  in  such  form  and  manner  as  may  be  best 
adapted  for  public  information  and  use,  and  such  authorized 


§  538.]  Acts  Regulating  Commerce.  457 

publications  shall  be  competent  evidence  of  the  reports  and  de- 
cisions of  the  commission  therein  contained  in  all  courts  of  the 
United  States  and  of  the  several  states  without  any  further 
proof  or  authentication  thereof.  The  commission  may  also 
cause  to  be  printed  for  early  distribution  its  annual  reports. 

Section  fourteen  as  amended  by  the  acts  of  March  2,  1889, 
and  June  29,  1906. 

The  original  act  read : 

"That  whenever  an  investigation  shall  be  made  by  said  com- 
mission, it  shall  be  its  duty  to  make  a  report  in  writing  in  re- 
spect thereto,  which  shall  include  the  findings  of  fact  upon 
which  the  conclusions  of  the  commission  are  based,  together  with 
its  reconunendation  as  to  what  reparation,  if  any,  should  be  made 
by  the  common  carrier  to  any  party  or  parties  who  may  be 
found  to  have  been  injured;  and  such  findings  so  made  shall 
thereafter,  in  all  judicial  proceedings,  be  deemed  prima  fact^ 
evidence  as  to  each  and  every  fact  found. 

''All  reports  of  investigations  made  by  the  commission  shall 
be  entered  of  record,  and  a  copy  thereof  shall  be  f'urnished  to 
the  party  who  may  have  complained,  and  to  any  common  carrier 
that  may  have  been  complained  of." 

The  act  of  March  2,  1889,  added  the  last  paragraph  of  the 
present  section. 

Under  the  original  act,  construing  section  fourteen  Avith  sec- 
tion ten,  the  commission  held  that  it  must  be  a  "willful"  viola- 
tion of  the  act  to  authorize  it  to  make  a  recommendation  of  repa- 
ration. Railroad  Com.  of  Fla.  v.  Savannah,  Fla.  &  W.  R.  Co.,  5 
I.  C.  C.  R.  13,  136,  3  I.  C.  R.  688,  693.  750.  Section  cited, 
Washer  Grain  Co.  v.  Mo.  Pac.  R.  Co.,  15  I.  C.  C.  R.  147,  153; 
Arkansas  Fuel  Co.  v.  Chicago,  M.  &  St.  P.  R.  Co.,  16  I.  C.  C. 
R.  95,  98.  Section  recited  in  course  of  opinion.  Int.  Com.  Com. 
v.  Cincinnati,  N.  0.  &  T.  P.  R.  Co.,  64  Fed.  981,  983,  13  U.  S. 
App.  700;  Int.  Com.  Com.  v.  L.  &  N.  R.  Co.,  73  Fed.  409,  414. 
What  the  report  should  show.  Order  will  be  set  aside  when  the 
commission  excludes  relevant  evidence,  or  fails  to  give  considera- 
tion thereto.  Tex.  &  Pac.  R.  Co.  v.  Int.  Com.  Com.,  162  U.  S. 
197,  40  L.  Ed.  940,  3  6  Sup.  Ct.  666.  EfiPeet  of  the  commission's 
finding  with  reference  to  the  classification  of  a  commodity.  Int. 
Com.  Com.  v.  Cincinnati.  II.  &  D.  Ry.  Co.,  H6  Fed.  559.  Affirm- 
ed. Cincinnati,  H.  &  D.  Ry.  Co.  v.  Int.  Com.  Com.,  206  U.  S. 
142,  51  L.  Ed.  995,  27  Sup.  Ct.  648.    Effect  given  to  the  finding 


458  Acts  Regttlattng  Commerce.  [§  539. 

of  the  commission  fixing  a  reconsignment  charge.  St.  Louis  Hay 
&  Grain  Co.  v.  So.  Ry.  Co.,  M9  Fed.  GOO.  Affirmed.  So.  Ry. 
Co.  V.  St.  Louis  Hay  &  Grain  Co.,  153  Fed.  728,  82  C.  C.  A.  614. 
Reversed,  holding  that  the  commission  erred  in  law  in  fixing  a 
reconsignment  charge  at  the  actual  cost  thereof,  the  carrier  being 
entitled  to  a  profit.  So.  Ry.  Co.  v.  St.  Louis  Hay  &  Grain  Co., 
214  U.  S.  297,  53  L.  Ed.        ,       Sup.  Ct. 

§  539.  Power  of  commission  to  determine  and  prescribe  just 
and  reasonable  rates,  regulations  and  practices. — That  the  com- 
mission is  authorized  and  empowered,  and  it  shall  be  its  duty, 
whenever,  after  full  hearing  upon  a  complaint  made  as  provided 
in  section  thirteen  of  this  act,  or  upon  complaint  of  any  common 
carrier,  it  shall  be  of  the  opinion  that  any  of  the  rates,  or 
charges  whatsoever,  demanded,  charged,  or  collected  by  any 
common  carrier  or  carriers,  subject  to  the  provisions  of  this  act, 
for  the  transportation  of  persons  or  property  as  defined  in  the 
first  section  of  this  act,  or  that  any  regulations  or  practices  what- 
soever affecting  such  rates,  are  mijust  or  unreasonable,  or  un- 
justly discriminatory,  or  unduly  preferential  or  prejudicial,  or 
otherwise  in  violation  of  any  of  the  provisions  of  this  act,  to  de- 
termine and  prescribe  what  will  be  the  just  and  reasonable  rate 
or  rates,  charge  or  charges,  to  be  thereafter  observed  in  such 
case  as  the  maximum  to  be  charged;  and  what  regulation  or 
practice  in  respect  to  such  transportation  is  just,  fair,  and  rea- 
sonable to  be  thereafter  followed;  and  to  make  an  order  that  the 
carrier  shall  cease  and  desist  from  such  violation,  to  the  extent 
to  which  the  commission  find  the  same  to  exist,  and  shall  not 
thereafter  publish,  demand,  or  collect  any  rate  or  charge  for 
such  transportation  in  excess  of  the  maximum  rate  or  charge  so 
prescribed,  and  shall  conform  to  the  regulation  or  practice  so 
prescribed. 

First  part  of  section  fifteen,  the  whole  section  being  added  by 
the  act  of  Jime  29,  1906. 

The  original  section  read: 

''That  if  in  any  case  in  which  an  investigation  shall  be  made 
by  said  commission  it  shall  be  made  to  appear  to  the  satisfac- 
tion of  the  commission,  either  by  the  testimony  of  witnesses  or 
other  evidence,  that  anything  has  been  done  or  omitted  to  be  done 
in  violation  of  the  provisions  of  this  act,  or  of  any  law  cogniz- 
able by  said  commission,  by  any  common  carrier,  or  that  any  in- 
jury or  damage  has  been  sustained  by  the  party  or  parties  com- 


§  539.]  Acts  Regulating  Commerce.  459 

plaining,  or  by  other  parties  aggrieved  in  consequence  of  any 
such  violation,  it  shall  be  the  duty  of  the  commission  to  forth- 
with cause  a  copy  of  its  report  in  respect  thereto  to  be  delivered 
to  such  common  carrier,  together  with  a  notice  to  said  common 
carrier  to  cease  and  desist  from  such  violation,  or  to  make  repa- 
ration for  the  injury  so  found  to  have  been  done,  or  both,  within 
a  reasonable  time,  to  be  specified  by  the  commission ;  and  if, 
within  the  time  specified,  it  shall  be  made  to  appear  to  the  com- 
mission that  such  common  carrier  has  ceased  from  such  violation 
of  law,  and  has  made  reparation  for  the  injury  found  to  have 
been  done,  in  compliance  with  the  report  and  notice  of  the  com- 
mission, or  the  satisfaction  of  the  party  complaining,  a  statement 
to  that  effect  shall  be  entered  of  record  by  the  commission,  and 
the -said  common  carrier  shall  thereupon  be  relieved  from  further 
liability  or  penalty  for  such  particular  violation  of  law." 

The  original  act  gave  the  commission  power  not  only  to  de- 
termine what  rates  were  unreasonable,  but  what  Avere  reasonable. 
Cose  Bros.  &  Co.  v.  Lehigh  V.  R.  Co.,  4  I.  C.  C.  R.  535,  577, 
578,  3  I.  C.  R.  460,  478.  Order  not  enforced.  Int.  Com.  Com. 
V.  Lehigh  V.  R.  Co.,  74  Fed.  784;  Murphy,  Wasey  &  Co.  v. 
Wabash  R.  Co.,  5  I.  C.  C.  R.  122,  3  I.  C.  R.  725,  726.  Power  to 
prescribe  rates  exercised.  IMerchants  Union  of  Spokane  v.  N. 
Pae.  R.  Co.,  5  I.  C.  C.  R.  478,  4  I.  C.  R.  183,  198.  Order  not 
enforced.  Farmers  Loan  &  Trust  Co.  v.  N.  Pac.  R.  Co.,  83  Fed. 
249 ;  Freight  Bureau  of  Cincinnati  v.  Cincinnati,  N.  0.  &  T.  P. 
Ry.  Co.,  6  I.  C.  C.  R.  195,  4  I.  C.  R.  592,  617.  Order  not  en- 
forced. Int.  Com.  Com.  v.  Cincinnati,  N.  0.  &  T.  P.  Ry.  Co., 
76  Fed.  183,  167  U.  S.  479,  42  L.  Ed.  243,  17  Sup.  Ct.  896. 
The  Supreme  Court  having  intimated  in  Cincinnati,  N.  0.  &  T. 
P.  Ry.  Co.  V.  Int.  Com.  Com.,  162  U.  S.  184,  40  L.  Ed.  935,  16 
Sup.  Ct.  700,  5  I.  C.  R.  391,  and  having  held  in  Int.  Com.  Com. 
V.  Cincinnati,  N.  0.  &  T.  P.  Ry.  Co.,  167  U.  S.  479,  42  L.  Ed. 
243,  17  Sup.  Ct.  896,  that  the  commission  had  no  power  to  fix 
rates,  the  commission,  after  citing  these  cases,  refused  to  exer- 
cise such  power.  Carey  v.  Eureka  Springs  R.  Co.,  7  I.  C.  C.  R. 
286,  319.  The  power  the  commission  had  and  exercised  before 
the  act  of  June  29,  1906,  was  practically  to  prescril)o  the  old 
rate  as  the  rate  for  the  future  when  an  advance  was  declared 
illegal.  For  illustration,  see  Tift  v.  So.  Ry.  Co.,  10  I.  C.  C.  R. 
548,  and  Central  Yellow  Pine  Asso.  v.  111.  Cent.  R.  Co.,  10  I.  C. 
C.  R.  505,  where  an  advance  was  declared  illegal,  and  Southern 


460  Acts  Eegulating  Commerce.  [§  539. 

Pine  Lumber  Co.  v.  So.  Ky.  Co.,  14  I.  C.  C.  R.  195,  and  Nicola, 
Stone  &  Myers  Co.  v.  L.  &  N.  R.  Co.,  14  I.  C.  C.  R.  199,  where 
the  full  advance  was  decided  to  be  the  measure  of  reparation. 
No  order  made  because  of  lack  of  authority  to  fix  rates.  Has- 
tings i\ralting  Co.  V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  11  I.  C.  C.  R. 
675.  The  old  law  gave  power  to  determine  how  much  reparation 
should  be  awarded  and  thereby  to  determine  to  what  extent  a 
rate  was  excessive ;  the  amendment  gave  the  additional  power  to 
prescribe  what  rate  should  be  collected  in  the  future.  Cattle 
Raisers'  Asso.  v.  IMo.,  Kan.  &  Tex.  Ry.  Co.,  12  I.  C.  C.  R.  1,  3. 
Section  construed  with  reference  to  elevator  allowances.  Re  Al- 
lowances to  Elevators,  12  I.  C.  C.  R.  85.  Distribution  of  coal 
cars  is  a  regulation  and  practice  affecting  rates  under  this  sec- 
tion. Railroad  Com.  of  Ohio  v.  Wheeling  &  L.  E.  R.  Co.,  12  I. 
C.  C.  R.  398;  Rail  &  River  Coal  Co.  v.  B.  &  0.  R.  Co.,  14  I.  C. 
C.  R.  86.  Rules  as  to  who  shall  load  and  unload  freight  subject 
to  the  jurisdiction  of  this  commission  under  this  section.  Whole- 
sale Fruit  &  Producers  Asso.  v.  A.  T.  &  S.  F.  Ry.  Co.,  14  I.  C. 
C.  R.  410,  421.  Section  with  section  fourteen  contemplates 
awards  of  money  by  the  commission.  Washer  Grain  Co.  v.  IMo. 
Pac.  Ry.  Co.,  15  I.  C.  C.  R.  147,  153.  Gives  power  to  fix  rates 
for  the  future  and  award  reparation  for  the  past.  Arkansas 
Fuel  Co.  V.  Chicago,  M.  &  St.  P.  R.  Co.,  16  I.  C.  C.  R.  95.  96. 
Whether  or  not  the  commission  had  power  to  fix  maximum  rates 
prior  to  the  act  of  Jiuie  29.  1906,  was  first  mooted  and  doubted 
in  the  Supreme  Court  in  the  cases  of  Cincinnati,  N.  0.  &  T.  P. 
R.  Co.  V.  Int.  Com.  Com.,  162  U.  S.  184,  40  L.  Ed.  935,  16  Sup. 
Ct.  700.  and  Tex.  &  Pac.  Ry.  Co.  v.  Int.  Com.  Com.,  162  U.  S. 
197,  40  L.  Ed.  940.  16  Sup.  Ct.  666,  and  such  power  was  definite- 
ly declared  not  to  have  been  given  the  commission  in  the  case 
of  Int.  Com.  Com.  v.  Cincinnati,  N.  0.  &  T.  P.  R.  Co.,  167  U. 
S.  479,  42  L.  Ed.  243,  17  Sup.  Ct.  896.  Subsequently  these 
cases  were  followed  by  the  inferior  courts.  See  Fed.  Stat.  Ann. 
vol.  3,  p.  840. 

Section  fifteen  of  the  old  act  is  little  like  the  present  section. 
Therefore,  citations  to  the  former  are  not  directly  applicable  to 
the  present  section.  Construing  this  section  with  others,  from 
twelve  to  eighteen,  inclusive,  held  that  "the  commission  is  in- 
vested with  only  administrative  powers  of  supervision  and  in- 
vestigation, which  fall  far  short  of  making  the  board  a  court,  or 
its  action  judicial,  in  the  proper  sense  of  the  term."    Kentucky 


§  539.]  Acts  Regulating  Commerce.  461 

&  I.  Bridge  Co.  v.  L.  &  N.  R.  Co.,  37  Fed.  567,  613.  Section 
required  notice  to  be  given  carrier  to  cease  violations  of  act. 
Int.  Com.  Com.  v.  Detroit,  G.  li.  &  M.  R.  Co.,  57  Fed.  1005, 
1008,  4  I.  C.  R.  722.  "While  the  proceedings  of  the  commission 
are  not  judicial,  its  procedure  should  substantially  conform  to 
that  before  a  court.  Int.  Com.  Com.  v.  L.  &  N.  R.  Co.,  73  Fed. 
409,  414.  When  the  commission  adopts  an  erroneous  principle 
in  arriving  at  a  conclusion,  its  order  based  thereon  will  not  be 
judicially  enforced.  Int.  Com.  Com.  v.  Lehigh  V.  R.  Co.,  74 
Fed.  784,  787. 

"While  the  Hepburn  act  gives  power  to  the  commission  to  fix 
rates,  courts  may  enjoin  advance  until  the  commission  can  de- 
termine whether  or  not  the  advance  is  legal.  Kiser  v.  Cent,  of 
Ga.  Ry.  Co.,  158  Fed.  193,  198.  The  commission  may  make  a 
finding  without  being  embarrassed  by  admissions  in  a  complaint. 
Cincinnati,  11.  &  D.  R.  Co.  v.  Int.  Com.  Com.,  206  U.  S.  342,  149, 
51  L.  Ed.  995,  998,  27  Sup.  Ct.  648.  Immaterial  error  of  law  not 
ground  to  set  aside  order  of  commission  which  is  given  the  force 
"due  to  the  judgments  of  a  tribunal  appointed  by  law  and  in- 
formed by  experience."  111.  Cent.  R.  Co.  v.  Int.  Com.  Com., 
206  U.  S.  441,  454,  51  L.  Ed.  1128,  1134,  27  Sup.  Ct.  700.  Some 
orders  of  the  commission  entered  since  the  passage  of  the  Hep- 
burn act  have  reached  the  courts.  In  Stickney  v.  Int.  Com.  Com., 
164  Fed.  638,  644,  the  circuit  judge  said:  "This  court  has 
ample  jurisdiction  to  set  aside  or  suspend  any  order  of  the  com- 
mission resulting  from  a  misconception  and  misapplication  of 
a  law  to  conceded  or  undisputed  facts."  In  Mo.,  Kan.  &  Tex. 
R.  Co.  v.  Int.  Com.  Com.,  164  Fed.  645,  the  circuit  judges  held: 
That  the  same  rules  of  law  applied  when  a  suit  was  brought  to 
enjoin  an  order  of  the  commission  as  when  brought  to  enforce 
such  order,  and  when  complainants  case  for  an  injunction  was 
"wanting  in  that  certainty,  fullness,  and  persuasive  force  which 
ought  to  be,  and  is,  essential  to  overcome  the  force  of  the  com- 
mission's  finding  or  determination  upon  which  the  order  is 
based,"  a  preliminary  injunction  was  denied.  Injunctions 
granted  against  order  of  commission  for  error  in  law.  Delaware, 
L.  &  "W.  R.  Co.  v.  Int.  Com.  Com.,  166  Fed.  498;  same  style  case, 
166  Fed.  499.  Stickney  case,  supra,  C.  R.  I.  &  P.  R.  Co.  v.  Int. 
Com.  Com.  (Mo.  River  Rate  Case),  171  Fed.  .  Injunctions 
denied.  So.  Pac.  Ter.  Co.  v.  Int.  Com.  Com..  Hifi  Fed.  134;  Mo., 
Kan.  &  Tex.  Ry.  Case,  supra. 


462  Acts  Regulating  Commerce.  [§  540. 

§  540.  When  orders  take  effect  and  how  long  continue  unless 
modified  or  set  aside  by  the  commission  or  a  court. — All  orders  of 
the  commission,  except  orders  for  the  payment  of  money,  shall 
take  effect  within  such  reasonable  time,  not  less  than  thirty  days, 
and  shall  continue  in  force  for  such  period  of  time,  not  ex- 
ceeding two  years,  as  shall  be  prescribed  in  the  order  of  the  com- 
mission, unless  the  same  shall  be  suspended  or  modified  or  set 
aside  by  the  commission  or  be  suspended  or  set  aside  by  a  court 
of  competent  jurisdiction. 

Second  part  of  paragraph  one  of  section  fifteen  as  added  by 
act  of  June  29,  1906. 

Cited,  Mo.,  Kan.  &  Tex.  Ey.  Co.  v.  Int.  Com.  Com.,  164  Fed. 
645,  649. 

§  541.  Division  of  joint  rate  may  be  prescribed  by  commis- 
sion.— Whenever  the  carrier  or  carriers,  in  obedience  to  such 
order  of  the  commission  or  otherwise,  in  respect  to  joint  rates, 
fares,  or  charges,  shall  fail  to  agree  among  themselves  upon  the 
apportionment  or  division  thereof,  the  commission  may  after 
hearing  make  a  supplemental  order  prescribing  the  just  and  rea- 
sonable proportion  of  such  joint  rate  to  be  received  by  each 
carrier  party  thereto,  which  order  shall  take  effect  as  a  part  of 
the  original  order.- 

Last  part  of  paragraph  one  of  section  fifteen  as  added  by  act 
of  June  29,  1906. 

Before  the  amended  act  commission  had  no  authority  to  com- 
pel carriers  to  make  joint  rates.  Ee  Application  of  F.  AV.  Clark. 
3  I.  C.  C.  R.  649,  2  I.  C.  R.  797 ;  Commercial  Club  of  Omaha  v. 
Chicago,  R.  I.  &  Pac.  Ry.  Co.,  6  I.  C.  C.  R.  647,  677;  Fred  G. 
Clark  Co.  V.  Lake  Shore  &  M.  S.  Ry.  Co.,  11  I.  C.  C.  R.  558, 
Re  Alleged  Unlawful  Discrimination  Against  Enterprise  Trans- 
portation Co.,  11  I.  C.  C.  R:  587 ;  Ky.  &  I.  Bridge  Co.  v.  L.  & 
N.  R.  Co.,  37  Fed.  567;  Little  Rock  &  M.  R.  Co.  v.  St.  L.,  I.  M. 
&  S.  Ry.  Co.,  41  Fed.  559;  Chicago  &  N.  W.  Ry.  Co.  v.  Osborne, 
52  Fed.  912,  915,  3  C.  C.  A.  347 ;  Memphis  &  L.  R.  R.  Co.  v. 
So.  Express  Co.  (Express  cases),  117  U.  S.  1,  29  L.  Ed.  791,  6 
Sup.  Ct.  542,  628;  So.  Pac.  Co.  v.  Lit.  Com.  Com.,  200  U.  S.  536, 
553,  50  L.  Ed.  585,  593,  20  Sup.  Ct.  330.  Under  the  Hepburn 
law,  in  fixing  a  division  of  joint  rates  between  carriers  all  cir- 
cumstances should  be  considered  and  such  divisions  should  not 
be  on  a  mileage  or  other  fixed  basis.  Star  Grain  &  Lumber  Co. 
v.  A.  T.  &  S.  F.  Ry.  Co.,  14  I.  C.  C.  R.  364. 


§  542.]  Acts  Regulating  Commerce.  463 

§  542.  Through  routes  and  joint  rates  may  be  established  by 
commission. — The  commission  may  also,  after  hearing  on  a  com- 
plaint, establish  through  routes  and  joint  rates  as  the  maximum 
to  be  charged  and  prescribe  the  division  of  such  rates  as  herein- 
before provided,  and  the  terms  and  conditions  under  which  such 
through  routes  shall  be  operated,  when  that  may  be  necessary 
to  give  effect  to  any  provision  of  this  act,  and  the  carriers  com- 
plained of  have  refused  or  neglected  to  voluntarily  establish  such 
through  routes  and  joint  rates,  provided  no  reasonable  or  satis- 
factory through  route  exists,  and  this  provision  shall  apply  when 
one  of  the  connecting  carriers  is  a  water  line. 

Second  paragraph  of  section  fifteen  added  by  act  June  29, 
1906. 

The  power  conferred  by  this  section  did  not  exist  until  this 
amendment  was  passed.  See  annotation  next  preceding  section. 
The  proviso  to  this  section  prevents  new  lines  from  forcing  joint 
traffic  arrangements  when  satisfactory  through  routes  exist. 
Chicago  &  M.  Elec.  R.  Co.  v.  111.  Cent.  R.  Co.,  13  I.  C.  C.  R.  20. 
Through  route  established  under  this  section.  Pacific  Coast 
Lumber  i\Ifgrs.  Asso.  v.  N.  Pac.  Ry.  Co.,  14  I.  C.  C.  R.  51 ;  Enter- 
prise Fuel  Co.  V.  Penn.  R.  Co.,  16  I.  C.  C.  R.  219,  220,  222. 

§  543.  Charges  for  instrumentalities  iurnished  by  shipper  must 
be  reasonable. — If  the  owner  of  property  transported  under  this 
act  directly  or  indirectly  renders  any  service  connected  witL  such 
transportation,  or  furnishes  any  instrumentality  used  therein, 
the  charge  and  allowance  therefore  shall  be  no  more  than  is  just 
and  reasonable,  and  the  commission  may,  after  hearing  on  a  com- 
plaint, determine  what  is  a  reasonable  charge  as  the  maximum 
to  be  paid  by  the  carrier  or  carriers  for  the  service  so  rendered 
or  for  the  use  of  the  instrumentality  so  furnished,  and  fix  the 
same  by  appropriate  order,  which  order  shall  have  the  same 
force  and  effect  and  be  enforced  in  like  manner  as  the  orders 
above  provided  for  in  this  section. 

Paragraph  three  of  section  fifteen  added  by  act  June  29,  1906. 

Storage  and  switching  tracks  within  the  inclosure  of  the  ship- 
per and  established  for  his  convenience  will  not  furnish  a  basis 
for  the  shipper's  claim  for  compensation  for  storing  cars  under 
this  section.  General  Elec.  Co.  v.  New  York  C.  &  H.  R.  R.  Co., 
14  I.  C.  C.  R.  237,  242. 

§  544.  Enumeration  of  powers  of  commission  not  exclusive. — 
The   foregoing  enumeration   of  powers  shall  not  exclude   any 


464  Acts  Regulating  Commerce.  [§  545. 

power  which  the  ooiiimission  would  otherwise  have  in  the  making 
of  an  order  under  the  provisions  of  this  act. 

Last  paragraph  of  section  fifteen  added  by  act  June  29,  1906. 

§  545.  Award  of  damages  shall  be  made  by  commission  after 
hearing. — That  if,  after  hearing  on  a  complaint  made  as  provided 
in  section  thirteen  of  this  act,  the  commission  shall  determine 
that  any  party  complainant  is  entitled  to  an  award  of  damages 
under  the  provisions  of  this  act  for  a  violation  thereof,  the  com- 
mission shall  make  an  order  directing  the  carrier  to  pay  to  the 
,  complainant  the  sum  to  which  he  is  entitled  on  or  before  a  day 
named. 

First  paragraph  of  section  sixteen  as  it  now  exists  is  an 
amendment  passed  June  29,  1906. 

The  original  section  read : 

''That  whenever  any  common  carrier,  as  defined  in  and  sub- 
ject to  the  provisions  of  this  act,  shall  violate  or  refuse  or 
neglect  to  obey  any  lawful  order  or  requirement  of  the  commis- 
sion in  this  act  named,  it  shall  be  the  duty  of  the  commission, 
and  lawful  for  any  company  or  person  interested  in  such  order 
or  requirement,  to  apply,  in  a  summary  way,  by  petition,  to  the 
circuit  court  of  the  United  States  sitting  in  equity  in  the  judi- 
cial district  in  whch  the.  common  carrier  complained  of  has  its 
principal  office,  or  in  which  the  violation  or  disobedience  of  such 
order  or  requirement  shall  happen,  alleging  such  violation  or  dis- 
obedience, as  the  case  may  be;  and  the  said  court  shall  have 
power  to  hear  and  determine  the  matter,  on  such  short  notice  to 
the  common  carrier  complained  of  as  the  court  shall  deem  rea- 
sonable ;  and  such  notice  may  be  served  on  such  common  carrier, 
his  or  its  officers,  agents,  or  servants,  in  such  manner  as  the 
court  shall  direct;  and  said  court  shall  proceed  to  hear  and  de- 
termine the  matter  speedily  as  a  court  of  equity,  and  without 
the  formal  pleadings  and  proceedings  applicable  to  ordinary 
suits  in  equity,  but  in  such  manner  as  to  do  justice  in  the  prem- 
ises; and  to  this  end  such  court  shall  have  power,  if  it  think  fit, 
to  direct  and  prosecute,  in  such  mode  and  by  such  persons  as  it 
may  appoint,  all  such  inquiries  as  the  court  may  think  needful 
to  enable  it  to  form  a  just  judgment  in  the  matter  of  such 
petition ;  and  on  such  hearing  the  report  of  said  commission  shall 
be  prima  facie  evidence  of  the  matters  therein  stated ;  and  if  it 
be  made  to  appear  to  such  court,  on  such  hearing  or  on  report  of 
any  such  person  or  persons,  that  the  lawful  grder  or  requirement 


§  545.]  Acts  Regulating  Commerce.  465 

of  said  commission  drawn  in  question  has  been  violated  or  dis- 
obeyed, it  shall  be  lawful  for  such  court  to  issue  a  writ  of  in- 
junction or  other  proper  process,  mandatory  or  otherwise,  to  re- 
strain such  common  carrier  from  further  continuing  such  viola- 
tion or  disobedience  of  such  order  or  requirement  of  said  com- 
mission, and  enjoining  obedience  to  the  same ;  and  in  case  of  any 
disobedience  of  any  such  writ  of  injunction  or  other  proper  pro- 
cess, mandatory  or  otherwise,  it  shall  be  lawful  for  such  court 
to  issue  writs  of  attachment,  or  any  other  process  of  said  court 
incident  or  applicable  to  writs  of  injunction  or  other  proper  pro- 
cess, mandatory  or  otherwise,  against  such  common  carrier,  and 
if  a  corporation,  against  one  or  more  of  the  directors,  officers, 
or  agents  of  the  same,  or  against  any  owner,  lessee,  trustee,  re- 
ceiver, or  other  person  failing  to  obey  such  writ  of  injunction 
or  other  proper  process,  mandatory  or  otherwise ;  and  said  court 
may,  if  it  shall  think  fit.  make  an  order  directing  such  common 
carrier  or  other  person  so  disobeying  such  writ  of  injunction  or 
other  proper  process,  mandatory  or  otherwise,  to  pay  such  sum 
of  money  not  exceeding  for  each  carrier  or  petson  in  default  the 
sum  of  five  hundred  dollars  for  every  day  after  a  day  to  be 
named  in  the  order  that  such  carrier  or  other  person  shall  fail 
to  obey  such  injunction  or  other  proper  process,  mandatory  or 
otherwise;  and  such  moneys  shall  be  payable  as  the  court  shall 
direct,  either  to  the  party  complaining,  or  into  court  to  abide  the 
ultimate  decision  of  the  court,  or  into  the  treasury ;  and  payment 
thereof  may.  without  prejudice  to  any  other  mode  of  recovering 
the  same  be  enforced  by  attachment  or  order  in  the  nature  of 
a  vrr\t  of  execution,  in  like  manner  as  if  the  same  had  been  re- 
covered by  a  final  decree  in  personam  in  such  court.  "When  the 
subject  in  dispute  shall  be  of  the  value  of  two  thousand  dol- 
lars or  more,  either  party  to  such  proceeding  before  said  court 
may  appeal  to  the  Supreme  Court  of  the  United  States,  under 
the  same  regulations  now  provided  by  law  in  respect  of  security 
for  such  appeal;  but  such  appeal  shall  not  operate  to  stay  or  su- 
persede the  order  of  the  court  or  the  execution  of  any  writ  or 
process  thereon ;  and  such  court  may.  in  every  such  matter,  order 
the  payment  of  such  costs  and  counsel  fees  as  shall  be  deemefl 
reasonable.  "Whenever  any  such  petition  shall  be  filed  or  pre- 
sented by  the  commission  it  shall  be  the  duty  of  the  district  at- 
torney, under  the  direction  of  the  Attorney-General  of  the  Unit- 
ed States,  to  prosecute  the  same;  and  the  costs  and  expenses 


466  Acts  Regulating  Commerce.  [§  545. 

of  such  prosecution  shall  be  paid  out  of  the  appropriation  for 
the  expenses  of  the  courts  of  the  United  States.  For  the  pur- 
poses of  this  act,  excepting  its  penal  provisions,  the  circuit 
courts  of  the  United  States  shall  be  deemed  to  be  always  in  ses- 
sion. ' ' 

The  section  as  amended  by  the  act  of  IMarch  2,  1889,  is  as 
follows : 

"That  whenever  any  common  carrier,  as  defined  in  and  sub- 
ject to  the  provisions  of  this  act,  shall  violate,  or  refuse  or 
neglect  to  obey  or  perform  any  lawful  order  or  recpiirement  of 
the  commission  created  by  this  act,  not  founded  upon  a  contro- 
versy rec[uiring  a  trial  by  jury,  as  provided  by  the  seventh 
amendment  to  the  Constitution  of  the  United  States,  it  shall  be 
lawful  for  the  commission  or  for  any  company  or  person  in- 
terested in  such  order  or  requirement,  to  apply  in  a  summary 
Avay,  by  petition,  to  the  circuit  court  of  the  Imited  States  sit- 
ting in  equity  in  the  judicial  district  in  which  the  common  car- 
rier complained  of  has  its  principal  office,  or  in  which  the  viola- 
tion or  disobedience  of  such  order  or  requirement  shall  happen, 
alleging  such  violation  or  disobedience,  as  the  cause  may  be; 
and  the  said  court  shall  have  power  to  hear  and  determine  the 
matter,  on  such  notice  to  the  common  carrier  complained  of  as 
the  court  shall  deem  reasonable ;  and  such  notice  may  be  served 
on  such  common  carrier,  his  or  its  officers,  agents,  or  servants  in 
such  manner  as  the  court  shall  direct;  and  said  court  shall  pro- 
ceed to  hear  and  determine  the  matter  speedily  as  a  court  of 
equity,  and  without  the  formal  pleadings  and  proceedings  to 
ordinary  suits  in  equity,  but  in  such  manner  as  to  do  justice  in 
the  premises;  and  to  this  end  such  court  shall  have  power,  if  it 
think  fit,  to  direct  and  prosecute  in  such  mode  and  by  such  per- 
sons as  it  may  appoint,  all  such  inquiries  as  the  court  may  think 
needful  to  enable  it  to  form  a  just  judgment  in  the  matter  of 
such  petition ;  and  on  such  hearing  the  findings  of  fact  in  the 
report  of  said  commission  shall  be  prima  facie  evidence  of  the 
matters  therein  stated ;  and  if  it  be  made  to  appear  to  such  court, 
on  such  hearing  or  on  report  of  any  such  person  or  persons,  that 
the  lawful  order  or  requirement  of  said  commission  drawn  in 
question  has  been  violated  or  disobeyed,  it  shall  be  lawful  for 
such  court  to  issue  a  writ  of  injunction  or  other  proper  process, 
mandatory  or  otherwise,  to  restrain  such  common  carrier  from 
further  continuing  such  violation  or  disobedience  of  such  order 


§  545.]  Acts  Regulating  Commerce.  467 

or  requirement  of  said  commission,  and  enjoining  obedience  to 
the  same;  and  in  case  of  any  disobedience  of  any  such  writ  of 
injunction  or  other  proper  process,  mandatory  or  otherwise,  it 
shall  be  lawful  for  such  court  to  issue  writs  of  attachment,  or 
any  other  process  of  said  court  incident  or  applicable  to  w^rits 
of  injunction  or  other  proper  process,  mandatory  or  othermse, 
against  such  common  carrier,  and  if  a  corporation,  against  one 
or  more  of  the  directors,  officers,  or  agents  of  the  same,  or  against 
any  owner,  lessee,  trustee,  receiver,  or  other  person  failing  to 
obey  such  writ  of  injunction,  or  other  proper  process,  manda- 
tory or  otherwise ;  and  said  court  may,  if  it  shall  think  tit,  make 
an  order  directing  such  common  carrier  or  other  person  so  dis- 
obeying such  writ  of  injunction  or  other  proper  process,  manda- 
tory or  otherwise,  to  pay  such  sum  of  money,  not  exceeding  for 
each  carrier  or  person  in  default  the  sum  of  five  hundred  dol- 
lars for  every  day,  after  a  day  to  be  named  in  the  order,  that 
such  carrier  or  other  person  shall  fail  to  obey  such  injunction  or 
other  proper  process,  mandatory  or  otherwise;  and  such  moneys 
shall  be  payable  as  the  court  shall  direct,  either  to  the  party 
complaining  or  into  court,  to  abide  the  ultimate  decision  of  the 
court,  or  into  the  treasury ;  and  payment  thereof  may,  without 
prejudice  to  any  other  mode  of  recovering  the  same,  be  enforced 
by  attachment  or  order  in  the  nature  of  a  writ  of  execution,  in 
like  manner  as  if  the  same  had  been  recovered  by  a  final  decree 
in  personam  in  such  court.  "When  the  subject  in  dispute  shall 
be  of  the  value  of  two  thousand  dollars  or  more,  either  party  to 
such  proceeding  before  said  court  may  appeal  to  the  Supreme 
Court  of  the  United  States,  under  the  same  regulations  now  pro- 
vided by  law  in  respect  of  security  for  such  appeal;  but  such 
appeal  shall  not  operate  to  stay  or  supersede  the  order  of  the 
court  or  the  execution  of  any  writ  or  process  thereon,  and  such 
court  may,  in  every  such  matter,  order  the  payment  of  such 
costs  and  counsel  fees  as  shall  be  deemed  reasonable.  Whenever 
any  such  petition  shall  be  filed  or  presented  by  the  commission, 
it  shall  be  the  duty  of  the  district  attorney,  under  the  direction 
of  the  Attorney-General  of  the  United  States,  to  prosecute  the 
same ;  and  the  costs  and  expenses  of  such  prosecution  shall  be 
paid  out  of  the  appropriation  for  the  expenses  of  the  courts  of 
the  United  States. 

"If  the  matters  involved  in  any  such  order  or  requirement  of 
said   connnission    are   founded   upon   a  controversy   requiring  a 


468  Acts  Regulating  Commerce.  [§  545. 

trial  by  jury,  as  provided  by  the  seventh  amendment  to  the 
Constitution  of  the  United  States,  and  any  such  common  carrier 
shall  violate  or  refuse  or  neglect  to  obey  or  perform  the  same, 
after  notice  given  by  said  commission  as  provided  in  the  fifteenth 
section  of  this  act,  it  shall  be  lawful  for  any  company  or  person 
interested  in  such  order  or  requirement  to  apply  in  a  summary 
way  by  petition  to  the  circuit  court  of  the  United  States  sitting 
as  a  court  of  law  in  the  judicial  district  in  which  the  carrier 
complained  of  has  its  principal  office,  or  in  which  the  violation 
or  disobedience  of  such  order  or  requirement  shall  happen,  al- 
leging such  violation  or  disobedience  as  the  case  may  be ;  and 
said  court  shall  by  its  order  then  fix  a  time  and  place  for  the 
trial  of  said  cause,  which  shall  not  be  less  than  twenty  nor  more 
than  forty  days  from  the  time  said  order  is  made,  and  it  shall 
be  the  duty  of  the  marshal  of  the  district  in  which  said  pro- 
ceeding is  pending  to  forthwith  serve  a  copy  of  said  petition, 
and  of  said  order,  upon  each  of  the  defendants,  and  it  shall  be 
the  duty  of  the  defendants  to  file  their  answers  to  said  petition 
within  ten  days  after  the  service  of  the  same  upon  them  as 
aforesaid.  At  the  trial  the  findings  of  fact  of  said  commission 
as  set  forth  in  its  report  shall  be  prima  facie  evidence  of  the 
matters  therein  stated,  and  if  either  party  shall  demand  a  jury 
or  shall  omit  to  waive  a  jury  the  court  shall,  by  its  order,  direct 
the  marshal  forthwith  to  summons  a  jury  to  try  the  cause;  but 
if  all  the  parties  shall  waive  a  jury  in  writing,  then  the  court 
shall  try  the  issues  in  said  cause  and  render  its  judgment  there- 
on. If  the  subject  in  dispute  shall  be  of  the  value  of  two  thou- 
sand dollars  or  more  either  party  may  appeal  to  the  Supreme 
Court  of  the  United  States  under  the  same  regulations  now  pro- 
vided by  law  in  respect  to  security  for  such  appeal ;  but  such 
appeal  must  be  taken  within  twenty  days  from  the  day  of  the 
rendition  of  the  judgment  of  said  circuit  court.  If  the  judgment 
of  the  circuit  court  shall  be  in  favor  of  the  party  complaining, 
he  or  they  shall  be  entitled  to  recover  a  reasonable  counsel  or 
attorney's  fee,  to  be  fixed  by  the  court,  which  shall  be  collected 
as  part  of  the  costs  in  the  case.  For  the  purposes  of  this  act. 
excepting  its  penal  provisions,  the  circuit  courts  of  the  United 
States  shall  be  deemed  to  be  always  in  session." 

In  Council  v.  Railroad  Co.,  1  I.  C.  C.  R.  339,  1  I.  C.  R.  638, 
the  commission  declined  to  go  into  the  question  of  a  claim  for 
damages  for  trespass,  stating  that  a  jury  trial  was  necessary  in 


§  545.]  Acts  Regulating  Commerce.  469 

such  eases.  See  a  similar  holding.  Heck  v.  East  Tenn.,  Va.  & 
Ga.  Ry.  Co.,  1  I.  C.  C.  R.  495,  1  I.  C.  R.  775;  Riddle  v.  New 
York,  L.  E.  &  "W.  R.  Co.,  1  I.  C.  C.  R.  594,  1  I.  C.  R.  787.  In 
the  case  of  Rawson  v.  Newport  N.  &  M.  V.  R.  Co.,  3  I.  C.  C.  R. 
266,  2  I.  C.  R.  626,  the  commission  said  that  the  amendment  of 
March  2,  1889,  having  provided  for  a  trial  by  jury  in  suits  on 
the  conmiission 's  orders  of  reparation,  such  orders  could  under 
that  amendment  be  issued.  For  a  time  even  after  the  amend- 
ment the  commission  refused  to  issue  money  orders  for  repara- 
tion, leaving  the  matter  to  the  courts,  but  a  circuit  court  having 
decided  that  the  failure  of  the  commission  to  act,  barred  the  com- 
plainant; the  commission  decided  that  it  was  its  duty,  where 
the  facts  and  law  authorized  it,  to  make  awards  of  reparation. 
MacLoon  v.  Chicago  &  N.  W.  R.  Co.,  5  I.  C.  C.  R.  84,  3  I.  C.  R. 
711,  715,  716.  See  also  Cattle  Raisers'  Asso.  v.  Chicago,  B.  & 
Q.  R.  Co.,  10  I.  C.  C.  R.  83,  89,  95.  Section  quoted.  Blume  & 
Co.  V.  Wells  Fargo  &  Co.,  15  I.  C.  C.  R.  53,  55.  Clearly  the 
commission  has  authority  to  make  an  award  of  damages.  Washer 
Grain  Co.  v.  Mo.  Pac.  Ry.  Co.,  15  I.  C.  C.  R.  147,  153.  Arkansas 
Fuel  Co.  V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  16  I.  C.  C.  R.  95,  98. 
The  difference  between  the  old  law  and  the  amended  act  of 
June  29,  1906,  should  be  kept  in  mind  when  considering  the  de- 
cisions relating  to  the  section  prior  to  that  amendment.  A  suit 
on  an  order  of  the  commission  is  an  independent  suit,  in  which 
the  court  hears  the  case  de  novo,  though  the  commission's  re- 
port is  prima  facie  evidence  of  the  matters  of  fact  therein  stated. 
Kentuclr^  &  I.  Bridge  Co.  v.  L.  &  N.  R.  Co.,  37  Fed.  567,  614. 
This  is  true  whether  the  commission  itself  or  an  individual  seeks 
to  enforce  the  order  of  the  commission.  Int.  Com.  Com.  v.  Le- 
high V.  R.  Co.,  49  Fed.  177.  Other  evidence  may  overcome  the 
prima  facie  effect  of  the  commission's  report.  Int.  Com.  Com. 
v.  A.  T.  &  S.  F.  R.  Co.,  50  Fed.  295,  304;  Int.  Com.  Com.  v.  Cin- 
cinnati, N.  0.  &  T.  P.  Ry.  Co.,  56  Fed.  925,  934,  935.  If  order 
not  obeyed,  duty  of  commission  to  apply  to  a  court  to  enforce. 
Int.  Com.  Com.  v.  Detroit,  G.  II.  &  M.  Ry.  Co.,  57  Fed.  1005,  4 
I.  C.  R.  722.  Courts  can  onl}^  enforce  or  refuse  to  enforce  orders 
as  made.  Shinkle  etc.  v.  L.  &  N.  R.  Co.,  62  Fed.  690;  Detroit, 
G.  H.  &  M.  R.  Co.  V.  Int.  Com.  Com.,  74  Fed.  803.  841 ,  21  C.  C. 
A.  103.  Order  not  enforced  because  commission  failed  to  recog- 
nize "the  element  of  the  value  of  the  service."  Int.  Com.  Com. 
V.  Delaware,  L.  &  W.  R.  Co.,  64  Fed.  723,  724.     Section  cited. 


470  Acts  Regulating  Commerce.  [§545. 

Int.  Com.  Com.  v.  Cincinnati,  N.  0.  &  T.  P.  Ry.  Co.,  64  Fed. 
981,  984,  13  U.  S.  App.  700.  The  commission's  report  is  anal- 
agous  to  that  of  a  referee  or  special  master  in  chancery.  Int. 
Com.  Com.  v.  L.  &  N.  R.  Co.,  73  Fed.  409,  414.  The  circuit 
court  sitting  as  a  court  of  equity  has  no  jurisdiction  of  that 
part  of  the  commission's  order  relating  to  reparation.  Int.  Com. 
Com.  V.  Western  N.  Y.  &  P.  R.  Co.,  82  Fed.  192.  An  order  to 
be  enforced  must  be  definite  and  within  the  legal  power  of  the 
commission.  Farmers'  L.  &  T.  Co.  v.  N.  Pac.  Ry.  Co.,  83  Fed. 
249.  If,  after  a  hearing,  the  court  finds  the  facts  different  from 
those  found  by  the  commission,  the  court  will  act  on  the  facts 
found  by  it.  Int.  Com.  Com.  v.  East  Tenn.,  Va.  &  Ga.  Ry.  Co., 
85  Fed.  107.  Act  remedial  and  a  hearing  should  be  had,  al- 
though the  benefit  to  be  derived  from  the  order  appears  unappre- 
ciable.  Int.  Com.  Cora.  v.  Chicago,  B.  &  Q.  R.  Co.,  94  Fed.  272. 
A  decree  enforcing  order  of  the  commission  may  be  suspended 
pending  an  appeal  to  the  Supreme  Court.  Int.  Com.  Com.  v.  L. 
&  N.  R.  Co.,  101  Fed.  146.  Order  not  set  aside  unless  error 
clearly  appears.  Int.  Cora.  Com.  v.  L.  &  N.  R.  Co.,  102  Fed.  709. 
When  the  commission  has  erred  in  the  principles  of  law  applied, 
the  suit  to  enforce  should  be  dismissed  without  prejudice  to  the 
right  to  again  apply  to  that  body.  Int.  Com.  Com.  v.  So.  Ry. 
Co.,  105  Fed.  703,  710;  L.  &  N.  R.  Co.  v.  Behlraer,  175  U.  S. 
648,  44  L.  Ed.  309,  20  Sup.  Ct.  209.  A  bill  will  not  lie  to  pre- 
vent discrimination  under  section  three  prior  to  action  by  thb 
commission.  Central  Stock  Yards  Co.  v.  L.  &  N.  R.  Co.,  112 
Fed.  823.  Affirmed  on  another  groimd.  118  Fed.  113,  55  C. 
C.  A.  63.  Affirmed  by  the  Supreme  Court,  with  the  statement, 
"For  the  purposes  of  decision,  we  assume*  *  *  *  *  ^i^^t 
such  rights  as  the  plaintiff  has  may  be  enforced  by  bill  in 
equity,"  (citing  Interstate  Stock  Yards  Co.  v.  Indianapolis  U. 
R.  Co.,  99  Fed.  472.)  192  U.  S.  568,  570,  48  L.  Ed.  565,  569, 
24  Sup.  Ct.  339.  Burden  on  the  carrier  to  show  order  erroneous. 
Int.  Com.  Com.  v.  L.  &  N.  R.  Co.,  118  Fed.  613,  622;  Int.  Com. 
Com.  V.  So.  Pac.  Co.,  123  Fed.  597,.  602,  603,  604;  Int.  Com. 
Com.  V.  Cincinnati,  H.  &  D.  Ry.  Co.,  146  Fed.  559.  Affirmed. 
Cincinnati,  H.  &  D.  Ry.  Co.  v.  Int.  Com.  Com.,  206  U.  S.  142, 
51  L.  Ed.  995,  27  Sup.  Ct.  648.  The  court  may  adopt  different 
grounds  to  arrive  at  the  same  conclusion  as  the  commission. 
Int.  Com.  Cora.  v.  So.  Pac.  Co.,  132  Fed.  829,  137  Fed.  606. 
Decree  reversed.     So.  Pac.   Co.  v.  Int.  Com.  Com.,  200  U.  S. 


§  545.]  Acts  Regulating  Commerce.  471 

536,  50  L.  Ed.  585,  26  Sup.  Ct.  330.  Courts  cannot  separate  thr. 
legal  from  the  illegal  parts  of  an  order  of  the  commission,  and 
if  any  part  is  illegal,  must  refuse  to  enforce.  Int.  Com.  Com.  v. 
Lake  Shore  &  M.  S.  Ry.  Co.,  134  Fed.  942,  947.  The  findings 
of  fact  of  the  commission  should  be  separated  from  its  argu- 
ments, opinions  and  conclusions.  AVestern  N.  Y.  &  P.  R.  Co.  v. 
Penn  Refining  Co.,  137  Fed.  343,  70  C.  C.  A.  23.  Affirmed. 
Penn  Refining  Co.  v.  Western  N.  Y.  &  P.  R.  Co.,  208  U.  S.  208, 
52  L.  Ed.  456,  28  Sup.  Ct.  .  "Prima  facie  evidence  of  a 
fact  is  such  as,  in  judgment  of  law,  is  sufficient  to  establish  the 
fact ;  and,  if  not  rebutted,  remains  sufficient  for  the  purpose. ' ' 
Tift  V.  So.  Ry.  Co.,  138  Fed.  753,  759.  Affirmed.  So.  Ry.  Co. 
V.  Tift,  148  Fed.  1021,  206  U.  S.  428,  51  L.  Ed.  1124,  27  Sup. 
Ct.  709.  Section  cited  to  show  that  commission  may  sue  in  its 
ovm  name  to  enforce  its  orders.  Tex.  &  Pac.  R.  Co.  v.  Int. 
Com.  Com.,  162  U.  S.  197,  203,  40  L.  Ed.  940,  942,  16  Sup.  Ct. 
666.  This  section  applies  to  complaints  brought  under  the 
fourth  section,  notwithstanding  the  proviso  of  the  last  named 
section.  Int.  Com.  Com.  v.  Alabama  M.  R.  Co.,  168  U.  S,  144, 
169,  170,  40  L.  Ed.  414,  424,  18  Sup.  Ct.  45.  Under  section 
eleven  of  the  act  of  March  3,  1891  (26  Stat.  L.  829,  chap.  517), 
a  supersedeas  may  be  granted  by  the  circuit  court  of  appeals, 
when  an  appeal  is  granted  on  a  suit  brought  under  section  six- 
teen of  the  act  to  regulate  commerce.  L.  &  N.  R.  Co.  v.  Behl- 
mer,  169  U.  S.  644,  42  L.  Ed.  889,  18  Sup.  Ct.  502.  Case  dis- 
missed without  prejudice  to  right  of  commission  to  further  in- 
vestigate conformably  to  the  law  announced  by  the  court.  L.  & 
N.  R.  Co.  V.  Behlmer,  175  U.  S.  648,  676,  44  L.  Ed.  309,  320,  20 
Sup.  Ct.  209 ;  East  Tenn.,  Va.  &  Ga.  Ry.  Co.  v.  Int.  Com.  Com., 
181  U.  S.  1,  45  L.  Ed.  719,  21  Sup.  Ct.  516 ;  Int.  Com.  Com.  v. 
Clyde  S.  S.  Co.,  181  U.  S.  29,  45  L.  Ed.  729,  21  Sup.  Ct.  512; 
Int.  Com.  Com.  v.  Chicago,  B.  &  Q.  R.  Co.,  186  U.  S.  320,  46  L. 
Ed.  1182,  22  Sup.  Ct.  824.  The  statute  gives  prima  facie  effect 
to  the  findings  of  the  commission,  and  when  these  findings  are 
concurred  in  by  the  circuit  court,  they  should  not  be  interfered 
with  unless  the  record  discloses  clear  and  unmistakable  error. 
Cincinnati,  II.  &  D.  R.  Co.  v.  Int.  Com.  Com.,  206  U.  S.  142, 
154,  51  L.  Ed.  995,  1000,  27  Sup.  Ct.  648;  111.  Cent.  R.  Co.  v. 
Int.  Com.  Com.,  206  U.  S.  441,  466,  51  L.  Ed.  1128,  1138,  27  Sup. 
Ct.  700.  The  parties  at  interest  may  proceed  on  the  order  of  the 
commission  in  the  circuit  court.     So.  Ry.  Co.  v.  Tift,  206  U.  S. 


472  Acts  Regulating  Commerce.  [§546. 

428,  437,  51  L.  Ed.  1124,  1127,  27  Sup.  Ct.  709.  "The  findings 
of  the  commission  are  made  by  law  prima  facie  true.  This  court 
has  ascribed  to  them  the  strength  due  to  the  judgment  of  a 
tribmial  appointed  by  hiw  and  informed  by  experience."  111. 
Cent.  R.  Co.  v.  Int.  Com.  Com.,  206  U.  S.  441,  454,  51  L.  Ed. 
1128,  1133,  1134,  27  Sup.  Ct.  700. 

§  546.  Carrier  failing  to  comply  with  order  for  reparation, 
suit  may  be  brought  thereon  in  United  States  circuit  courts,  the 
order  being  prima  facie  evidence  of  right  to  recover. — If  a  car- 
rier does  not  comply  with  an  order  for  the  payment  of  money 
within  the  time  limit  in  such  order,  the  complainant,  or  any 
person  for  whose  benefit  such  order  was  made,  may  file  in  the 
circuit  court  of  the  United  States  for  the  district  in  which  he 
resides  or  in  which  is  located  the  principal  operating  office  of 
the  carrier,  or  through  which  the  road  of  the  carrier  runs,  a 
petition  setting  forth  briefly  the  causes  for  which  he  claims 
damages,  and  the  order  of  the  commission  in  the  premises.  Such 
suit  shall  proceed  in  all  respects  like  other  civil  suits  for  dam- 
ages, except  that  on  the  trial  of  such  suit  the  findings  and  order 
of  the  commission  shall  be  prima  facie  evidence  of  the  facts 
therein  stated,  and  except  that  the  petitioner  shall  not  be  liable 
for  costs  in  the  circuit  court  nor  for  costs  at  any  subsequent 
stage  of  the  proceedings  unless  they  accrue  upon  his  appeal.  If 
the  petitioner  shall  finally  prevail  he  shall  be  allowed  a  reason- 
able attorney's  fee,  to  be  taxed  and  collected  as  a  part  of  the 
costs  of  the  suit. 

First  part  of  second  paragraph  of  section  sixteen.  For  old 
law,  see  §  545. 

•  Basis  of  reparation  fixed,  but  the  courts  left  to  determine  the* 
amount.  Independent  Refiners'  Asso.  v.  Western  New  York  & 
P.  R.  Co.,  6  I.  C.  C.  R.  378,  449,  454.  Reparation  disallowed. 
Western  New  York  &  P.  R.  Co.  v.  Penn  Refining  Co.,  137  Fed. 
343,  70  C.  C.  A.  23.  Affirmed.  Penn  Refining  Co.  v.  Western 
N.  Y.  &  P.  R.  Co.,  208  U.  S.  208,  52  L.  Ed.  456,  28  Sup.  Ct. 
No  suit  prior  to  an  award  by  the  commission.  Howard  Supply 
Co.  V.  Chesapeake  &  0.  Ry.  Co..  162  Fed.  188,  191.  Texas  & 
Pae.  Ry.  Co.  v.  Abilene  Cotton  Oil  Co.,  204  U.  S.  426,  51  L.  Ed. 
553,  27  Sup.  Ct.  350. 

§  547.  Limitation  on  action  for  damages. — All  complaints  for 
the  recovery  of  damages  shall  be  filed  with  the  commission  within 
two  years  from  the  time  the  cause  of  action  accrues,  and  not 


§  548,]  Acts  Regulating  Commerce.  473 

after,  and  a  petition  for  the  enforcement  of  an  order  for  the 
payment  of  money  shall  be  filed  in  the  circuit  court  within  one 
year  from  the  date  of  the  order,  and  not  after :  Provided,  That 
claims  accrued  prior  to  the  passage  of  this  act  may  be  presented 
within  one  year. 

Last  part  of  second  paragraph  of  section  sixteen. 

Prior  to  this  amendment  no  limitation  was  prescribed  by  the 
act,  and  the  commission  held  that  the  law  of  the  state  in  which 
was  located  the  circuit  court  in  which  suit  was  brought  on  the 
order  of  reparation  would  control  as  to  limitation.  Cattle  Rais- 
ers' Asso.  V.  C,  B.  &  Q.  R.  Co.,  10  I.  C.  C.  R.  83,  100,  101,  102, 
103,  104.  Question  as  to  limitation  raised,  but  not  decided. 
Oshkosh  Logging  Tool  Co.  v.  Chicago  &  N.  W.  Ry.  Co.,  14  I. 
C.  C.  R.  109,  113.  The  limitation  period  of  one  year  begins  to 
run  August  28,  1906,  and  claims  arising  prior  to  that  date, 
which  is  the  effective  date  of  the  amended  act,  though  accrued 
more  than  two  years  prior  thereto,  may  be  presented  prior  to 
midnight  of  August  28,  1907.  Nicola,  Stone  &  Myers  Co.  v.  L. 
&  N.  R.  Co.,  14  I.  C.  C.  R.  199,  206.  A  written  presentation  of 
a  claim  wdthout  formal  complaint  stops  limitation.  Venus  v.  St. 
Louis,  I.  M.  &  S.  Ry.  Co.,  15  I.  C.  C.  R.  136.  The  cause  of  action 
accrues  when  the  carrier  violates  the  act.  Re  When  a  Cause  of 
Action  Accrues.  15  I.  C.  C.  R.  201.  Or  when  freight  charges 
are  paid.  Kile  &  Morgan  Co.  v.  Deepwater  Ry.  Co.,  15  I.  C.  C. 
R.  235.  This  statute  does  not  apply  to  suits  brought  primarily 
in  a. federal  court.  Lyne  v.  Delaware,  L.  &  W.  R.  Co.,  170  Fed. 
847. 

§  548.  All  parties  jointly  awarded  damages  may  sue  as  plain- 
tiffs against  all  carriers  parties  to  the  award. — In  such  suits  all 
parties  in  whose  favor  the  commissi(m  may  have  made  an  award 
for  damages  by  a  single  order  may  be  joined  as  plaintiffs,  and 
all  of  the  carriers  parties  to  such  order  awarding  such  damages 
may  be  joined  as  defendants,  and  such  suit  may  be  maintained 
by  such  joint  plaintiffs  and  against  such  joint  defendants  in  any 
district  where  any  one  of  such  joint  plaintiff's  could  maintain 
such  suit  against  any  one  of  such  joint  defendants;  and  service  of 
process  against  any  one  of  such  defendants  as  may  not  be  found 
in  the  district  where  tlie  suit  is  l)rought  may  be  made  in  any  dis- 
trict where  such  defendant  carrier  has  its  principal  operating 
office.     In  case  of  such  joint  suit  tlie  recovery,  if  any,  may  })e  by 


474  Acts  Regulating  Commerce.  [§  549. 

judgment  iu  favor  of  any  one  of  such  plaintiffs,  against  the  de- 
fendant found  to  be  liable  to  such  plaintiff. 

Third  paragraph  of  section  sixteen. 

§  549.  Service  of  orders  of  commission. — Every  order  of  the 
commission  shall  be  forthwith  served  by  mailing  to  any  one  of 
the  principal  officers  or  agents  of  the  carrier  at  his  usual  place 
of  business  a  copy  thereof;  and  the  registry  mail  receipt  shall 
be  prima  facie  evidence  of  the  receipt  of  such  order  by  the  car- 
rier in  due  course  of  mail. 

Fourth  paragraph  of  section  sixteen. 

§  550.  Commission  may  suspend  or  modify  its  orders. — The 
commission  shall  be  authorized  to  suspend  or  modify  its  orders 
upon  such  notice  and  in  such  manner  as  it  shall  deem  proper. 

Fifth  paragraph  of  section  sixteen. 

Power  exercised.  Traffic  Bureau  Merchants  Ex.  of  St.  Louis 
V.  Chicago,  B.  &  Q.  E.  Co.,  14  I.  C.  C.  R.  551. 

§  551.  Punishment  for  knowingly  disobeying  an  order  issued 
under  section  fifteen. — It  shall  be  the  duty  of  every  common 
carrier,  its  agents  and  employees,  to  observe  and  comply  with 
such  orders  so  long  as  the  same  shall  remain  in  effect. 

Any  carrier,  any  officer,  representative,  or  agent  of  a  carrier, 
or  any  receiver,  trustee,  lessee,  or  agent  of  either  of  them,  who 
knowingly  fails  or  neglects  to  obey  any  order  made  under  the 
provisions  of  section  fifteen  of  this  act  shall  forfeit  to  the  United 
States  the  sum  of  five  thousand  dollars  for  each  offense.  Every 
distinct  violation  shall  be  a  separate  offense,  and  in  case  of  a 
continuing  violation  each  day  shall  be  deemed  a  separate  offense. 

The  forfeiture  provided  for  in  this  act  shall  be  payable  into 
the  treasury  of  the  United  States,  and  shall  be  recoverable  in  a 
civil  suit  in  the  name  of  the  United  States,  brought  in  the  dis- 
trict where  the  carrier  has  its  principal  operating  office,  or  in 
any  district  through  which  the  road  of  the  carrier  runs. 

Paragraphs  six,  seven  and  eight  of  section  sixteen. 

§  552.  District  attorney  and  attorney-general  to  prosecute. 
Special  attorneys  may  be  employed. — It  shall  be  the  duty  of  the 
various  district  attorneys,  under  the  direction  of  the  Attorney- 
General  of  the  United  States,  to  prosecute  for  the  recovery  of 
forfeitures.  The  costs  and  expenses  of  such  prosecution  shall 
be  paid  out  of  the  appropriation  for  the  expenses  of  the  courts 
of  the  United  States.  The  commission  may,  with  the  consent  of 
the  Attorney-General,  employ  special  counsel  in  any  proceeding 


§  553.]  Acts  Regulating  Commerce.  475 

under  this  act,  paying  the  expenses  of  such  employment  out  of 
its  OA\Ti  appropriation. 

Paragraph  nine  of  section  sixteen. 

§  553.  Courts  may  enforce  obedience  to  commission's  orders, 
mandatory  or  otherwise. — If  any  carrier  fails  or  neglects  to  obey 
any  order  of  the  conunission,  other  than  for  the  payment  of 
money,  while  the  same  is  in  effect,  any  party  injured  thereby,  or 
the  commission  in  its  own  name,  may  apply  to  the  circuit  court 
in  the  district  where  such  carrier  has  its  principal  operating 
office,  or  in  which  the  violation  or  disobedience  of  such  order 
shall  happen,  for  an  enforcement  of  such  order.  Such  applica- 
tion shall  be  by  petition,  which  shall  state  the  substance  of  the 
order  and  the  respect  in  which  the  carrier  has  failed  of  obedience, 
and  shall  be  served  upon  the  carrier  in  such  manner  as  the  court 
may  direct,  and  the  court  shall  prosecute  such  inquiries  and 
make  such  investigations,  through  such  means  as  it  shall  deem 
needf al  in  the  ascertainment  of  the  facts  at  issue  or  which  may 
arise  upon  the  hearing  of  such  petition.  If,  upon  such  hearing 
as  the  court  may  determine  to  be  necessary,  it  appears  that  the 
order  was  regularly  made  and  duly  served,  and  that  the  carrier 
is  in  disobedience  of  the  same,  the  court  shall  enforce  obedience 
to  such  order  by  a  writ  of  iujmiction,  or  other  proper  process, 
mandatory  or  otherwise,  to  restrain  such  carrier,  its  officers, 
agents,  or  representatives,  from  further  disobedience  of  such 
order,  or  to  enjoin  upon  it,  or  them,  obedience  to  the  same ;  and  in 
the  enforcement  of  such  process  the  court  shall  have  those 
powers  ordinarily  exercised  by  it  in  compelling  obedience  to  its 
writs  of  injunction  and  mandamus. 

Tenth  paragraph  of  section  sixteen. 

§  554.  Appeals  to  Supreme  Court  priority  of  hearing. — From 
any  action  upon  such  petition  an  appeal  shall  lie  by  either  party 
to  the  Supreme  Court  of  the  United  States,  and  in  such  court 
the  case  shall  have  priority  in  hearing  and  determination  ovei 
all  other  causes  except  criminal  causes,  but  such  appeal  shall 
not  vacate  or  suspend  the  order  appealed  from. 

Eleventh  paragraph  of  section  sixteen. 

§  555.  Venue  of  suits  to  enjoin,  set  aside,  annul,  or  suspend 
an  order  of  the  commission. — The  venue  of  suits  brought  in  any 
of  the  circuit  courts  of  the  United  States  against  the  commis- 
sion to  enjoin,  set  aside,  annul,  or  suspend  any  order  or  re- 
quirement of  the  commission  shall  bo  in  the  district  where  the 


476  Acts  Regulating  Commerce,  [§  556, 

carrier  against  whom  such  order  or  requirement  may  have  been 
made  has  its  principal  operating  office,  and  may  be  brought  at 
any  time  after  such  order  is  promulgated.  And  if  the  order 
or  requirement  has  been  made  against  two  or  more  carriers  then 
in  the  district  where  any  one  of  said  carriers  has  its  principal 
operating  office,  and  if  the  carrier  has  its  principal  operating 
office  in  the  District  of  Columbia  then  the  venue  shall  be  in  the 
district  where  said  carrier  has  its  principal  office ;  and  jurisdic- 
tion to  hear  and  determine  such  suits  is  hereby  vested  in  such 
courts. 

First  part  of  the  twelfth  paragraph  of  section  sixteen. 

Jurisdiction  under  the  old  law  of  suits  by  the  commission.  Int. 
Com.  Com.  v.  Tex.  &  Pac.  Ry.  Co.,  57  Fed.  948,  6  C,  C,  A.  653, 
20  U.  S.  App.  1,  4  I.  C.  R.  408 ;  Int.  Com.  Com.  v.  So,  Pac,  Co., 
74  Fed.  42. 

Under  the  Hepburn  law,  Sanborn,  Hook  and  Adams,  Judges, 
announce  this  proposition : 

"V\^e  refrain  from  expressing  any  opinion  concerning  what 
other  jurisdiction,  if  any,  is  conferred  upon  this  court  bj''  the 
broad  and  comprehensive  language  of  the,  Hepburn  act,  author- 
izing it  to  "enjoin,  set  aside,  annul  or  suspend  any  order  or  re- 
quirement of  the  commission."  All  we  are  required  to  hold,  and 
all  we  do  hold,  is  that  this  court  has  ample  jurisdiction  to  set 
aside  or  suspend  any  order  of  the  commission  resulting  from  a 
misconception  and  misapplication  of  a  law  to  conceded  or  undis- 
puted facts."  Stickney  v.  Int.  Com.  Com.,  164  Fed.  638,  644, 
Rules  announced  in  a  suit  to  set  aside  an  order  of  the  commis- 
sion. Judges  Van  Devanter,  Hook  and  Adams.  Mo.,  Kan.  & 
Tex.  R.  Co.  V.  Int.  Com.  Com.,  164  Fed.  645 ;  C,  R,  I.  &  P,  R, 
Co.  V.  Int.  Com.  Com.  (Missouri  River  Rate  Case),  171  Fed.  680. 

§  556.  Expediting  act  applicable  to  such  suits  as  well  as  suits 
to  enforce  orders  of  commission. — The  provisions  of  "An  act  to 
expedite  the  hearing  and  determination  of  suits  in  equity,  and 
so  forth."  approved  February  eleventh,  nineteen  himdred  and 
three,  shall  be,  and  are  hereby,  made  applicable  to  all  such  suits, 
including  the  hearing  .on  an  application  for  a  preliminary  in- 
junction, and  are  also  made  applicable  to  any  proceeding  in 
equity  to  enforce  any  order  or  requirement  of  the  commission, 
or  any  of  the  provisions  of  the  act  to  regulate  commerce  ap- 
proved February  fourth,  eighteen  himdred  and  eighty-seven,  and 
all  acts  amendatory  thereof  or  supplemental  thereto.     It  shall 


§  557.]  Acts  Regulating  Commerce.  477 

be  the  duty  of  the  Attorney-General  in  every  such  case  to  file 
the  certificate  provided  for  in  said  expediting  act  of  February 
eleventh,  nineteen  hundred  and  three,  as  necessary  to  the  appli- 
cation of  the  provisions  thereof,  and  upon  appeal  as  therein  au- 
thorized to  the  Supreme  Court  of  the  United  States,  the  case 
shall  have  in  such  court  priority  in  hearing  and  determination 
over  all  other  causes  except  criminal  causes. 

Second  part  of  paragraph  twelve  of  section  sixteen. 

"When  two  of  the  three  circuit  judges  agree  case  will  not  be 
certified  to  the  Supreme  Court.  So.  Pac.  Ter.  Co.  v.  Int.  Com. 
Com.,  166  Fed.  134,        C.  C.  A. 

§  557.  Limitation  on  right  to  grant  injunction  against  com- 
mission's order.  Provisions  for  appeal  from  interlocutory  order. — 
Provided,  That  no  injunction,  interlocutory  order  or  decree  sus- 
pending or  restraining  the  enforcement  of  an  order  of  the  com- 
mission shall  be  granted  except  on  hearing  after  not  less  than 
five  days'  notice  to  the  commission.  An  appeal  may  be  taken 
from  any  interlocutory  order  or  decree  granting  or  continuing 
an  injunction  in  any  suit,  but  shall  lie  only  to  the  Supreme 
Court  of  the  United  States:  Provided  further,  That  the  ap- 
peal must  be  taken  within  thirty  days  from  the  entry  of  such 
order  or  decree  and  it  shall  take  precedence  in  the  appellate  court 
over  all  other  causes,  except  causes  of  like  character  and  crim- 
inal causes. 

Proviso  of  paragraph  twelve  of  section  sixteen. 

Preliminary  injunction  denied.  Delaware,  L.  &  W.  E.  Co.  v. 
Int.  Com.  Com.,  155  Fed.  512;  So.  Pac.  Ter.  Co.  v.  Int.  Com. 
Com.,  166  Fed.  3  34.  Preliminary  injunction  granted.  Dela- 
ware, L.  &  AV.  R.  Co.  V.  Int.  Com.  Com.,  166  Fed.  498;  Dela- 
ware, L.  &  W.  R.  Co.  V.  Int.  Com.  Com.,  166  Fed.  499.  In  the 
last  named  case,  under  the  peculiar  facts  and  at  the  request  of 
the  commission,  shipper  allowed  to  intervene.  169  Fed.  894. 
See  Missouri  River  Rate  Case  (C.  R.  I.  &  P.  R.  Co.  v.  Int.  Com. 
Com.),  171  Fed.  680. 

§  558.  Schedules,  contracts,  etc.,  must  be  filed  with  the  com- 
mission, and,  when  filed,  original  or  certified  copies  prima  facie 
evidence. — The  copies  of  schcclulos  and  tariffs  of  rates,  fares, 
and  charges,  and  of  all  contracts,  agreements,  or  arrangements 
between  common  carriers  filed  with  the  commission  as  lierein 
provided,  and  the  statistics,  tables,  and  figures  contained  in  the 
annual  r<'i)orts  of  carriers  made  to  tlie  commission,  as  required 


478  Acts  Kegt'i.ating  Commerce.  [§559. 

by  the  provisions  of  this  act,  shall  be  preserved  as  public  records 
in  the  custody  of  the  secretary  of  the  commission,  and  shall  be 
received  as  prima  facie  evidence  of  what  they  purport  to  be  for 
the  purpose  of  investigations  by  the  commission  and  in  all  ju- 
dicial proceedings;  and  copies  of  and  extracts  from  any  of  said 
schedules,  tariffs,  contracts,  agreements,  arrangements,  or  re- 
ports made  public  records  as  aforesaid,  certified  by  the  secretary 
under  its  seal,  shall  be  received  in  evidence  with  like  effect  as 
the  originals. 

Last  paragraph  of  section  sixteen. 

§  559.  Rehearings  may  be  granted  by  commission. — That  after 
a  decision,  order  or  requirement  has  been  made  by  the  commis- 
sion in  any  proceeding  any  party  thereto  may  at  any  time  make 
application  for  rehearing  of  the  same,  or  any  matter  determined 
therein,  and  it  shall  be  lawful  for  the  commission  in  its  discre- 
tion to  grant  such  rehearing  if  sufficient  reason  therefor  be  made 
to  appear.  Applications  for  rehearing  shall  be  governed  by  such 
general  rules  as  the  commission  may  establish.  No  such  applica- 
tion shall  excuse  any  carrier  from  complying  with  or  obeying 
any  decision,  order,  or  requirement  of  the  commission,  or  oper- 
ate in  any  manner  to  stay  or  postpone  the  enforcement  thereof, 
without  the  special  order  of  the  commission.  In  case  a  rehear- 
ing is  granted  the  proceedings  thereupon  shall  conform  as  nearly 
as  may  be  to  the  proceedings  in  an  original  hearing,  except  as 
the  commission  may  otherwise  direct ;  and  if,  in  its  judgment, 
after  such  rehearing  and  the  consideration  of  all  facts,  including 
those  arising  since  the  former  hearing,  it  shall  appear  that  the 
original  decision,  order,  or  requirement  is  in  any  respect  unjust 
or  unwarranted,  the  commission  may  reverse,  change,  or  modify 
the  same  accordingly.  Any  decision,  order,  or  requirement  made 
after  such  rehearing,  reversing,  changing,  or  modifying  the 
original  determination  shall  be  subject  to  the  same  provisions  as 
an  original  order. 

Section  16-a  added  by  the  act  of  June  29,  1906. 

The  commission  exercised  the  right  to  grant  rehearings  prior 
to  this  amendment.  Rehearing  not  granted  unless  commission 
is  satisfied  result  would  be  changed.  Riddle  v.  Pittsburg  &  L. 
E.  R.  Co..  1  I.  C.  C.  R.  490,  1  I.  C.  R.  773.  After  hearing  com- 
plaint on  pleadings  and  proof,  a  rehearing  will  not  be  granted 
to  one  not  a  party  to  the  proceedings.  Re  Petition  of  Produce 
Exchange.    2  I.  C.  C.  R.  588,  2  I.  C.  R.  412.    Application  should 


§  560.]  Acts  Regulating  Commerce.  479 

be  verified  and  should  state  the  nature  of  the  new  testimony. 
Commission  may  of  its  O'^^ti  motion  grant  a  rehearing  when  gen- 
eral public  interest  involved.  Rice  v.  Western  N.  Y.  &  P.  R.  Co., 
2  I.  C.  C.  R.  389,  2  I.  C.  R.  298.  Will  not  reopen  just  to  redis- 
cuss  the  facts  and  law  already  before  the  commission.  ]\Iyers 
V.  Penn.  Co.,  2  I.  C.  C.  R.  573,  2  I.  C.  R.  403,  544.  Upon  re- 
hearing with  additional  evidence  former  order  set  aside.  Bates 
V.  Penn.  R.  Co.,  4  I.  C.  C.  R.  281,  3  I  C.  R.  296.  Petition  must 
be  supported  by  proof  showing  prima  facie  error.  Proctor  & 
Gamble  v.  Cincinnati,  H.  &  D.  R.  Co.,  4  I.  C.  C.  R.  443,  3  I.  C. 
R.  374.  A  form  of  petition.  Haddock  v.  Delaware,  L.  &  W. 
R.  Co.,  3  I.  C.  R.  410.  Application  denied.  Railroad  Com.  of 
Fla.  V.  Savannah,  F.  &  AV.  Ry.  Co.,  5  I.  C.  C.  R.  136,  3  I.  C.  R. 
750;  Delaware  State  Grange  v.  New  York,  P.  &  N.  R.  Co.,  5  I. 
C.  C.  R.  161,  3  I.  C.  R.  828;  Brady  v.  Penn.  R.  Co.,  4  I.  C.  R. 
283;  Cattle  Raisers'  Asso.  v.  Chicago,  B.  &  Q.  R.  Co.,  10  I.  C. 
C.  R.  83,  106,  12  I.  C.  C.  R.  507,  514;  Johnston-Larimer  Dry 
Goods  Co.  V.  A.  T.  &  S.  F.  Ry.  Co.,  12  I.  C.  C.  R.  189;  Poor 
V.  Chicago,  B.  &  Q.  R.  Co.,  12  I.  C.  C.  R.  469 ;  Muscogee  Com- 
mercial Club  V.  Mo.,  Kan.  &  Tex.  Ry.  Co.,  13  I.  C.  C.  R.  68 ; 
Hussey  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  14  I.  C.  C.  R.  215;  Ran- 
dolph Lumber  Co.  v.  Seaboard  A.  L.  Ry.  Co.,  14  I.  C.  C.  R.  338. 
Granted  to  correct  the  record.  Independent  Refiners'  Asso.  v. 
Penn.  R.  Co..  4  I.  C.  R.  369.  Not  granted  when  sought  to  se- 
cure reparation  upon  questions  not  considered  in  original  case. 
Rice  V.  Western  N.  Y.  &  P.  R.  Co.,  6  I.  C.  C.  R.  455.  Rehearing 
granted.  Page  v.  Delaware,  I.  &  W.  R.  Co.,  6  I.  C.  C.  R.  548. 
Re  IMatters  of  Allowance  to  Elevators.  12  I.  C.  C.  R.  85 ;  13  I. 
C.  C.  R.  498;  14  I  C.  C.  R.  315,  320;  Thompson  Lumber  Co.  v. 
111.  Cent.  R.  Co.,  14  I.  C.  C.  R.  566.  Rehearing  had,  but.  after 
hearing,  dismissed  or  denied.  Cattle  Raisers'  Asso.  v.  Ft.  Worth 
&  D.  C.  Ry.  Co.,  7  I.  C.  C.  R.  555-a;  City  of  Danville  v.  So.  Ry. 
Co.,  8  I.  C.  C.  R.  571.  Rehearing  granted  that  the  commission 
might  exercise  the  power  granted  it  under  act  June  29,  1906. 
Cattle  Raisers'  Asso.  v.  Mo.,  Kan.  &  Tex.  Ry.  Co.,  12  I.  C.  C.  R. 
1 ;  Banner  Milling  Co.  v.  New  York  C.  &  H.  R.  R.  Co.,  14  I.  C. 
C.  R.  398,  but  not  so  when  complainant  neglected  to  enforce  in 
the  courts  a  former  order.  Cattle  Raisers'  Asso.  v.  Chicago,  B. 
&  Q.  R.  Co.,  12  I.  C.  C.  R.  6.  Power  to  grant  discretionary. 
City  of  Atr-hisoM  v.  :\lo.  Pac.  Ry.  Co.,  12  I.  C.  C.  R.  254. 

§  560.     Procedure  before  the  commission. — That  the  coinmis- 


480  Acts  Regulating  Commerce.  [§561. 

sion  may  conduct  its  proceedings  in  such  nianner  as  will  best 
conduce  to  the  proper  dispatch  of  business  and  to  the  ends  of 
justice.  A  majority  of  the  commission  shall  constitute  a  quorum 
for  the  transaction  of  business,  but  no  commissioner  shall  partici- 
pate in  any  hearing  or  proceeding  in  which  he  has  any  pecuniary 
interest.  Said  commission  may,  from  time  to  time,  make  or 
amend  such  general  rules  or  orders  as  may  be  requisite  for  the 
order  and  regulation  of  proceedings  before  it,  including  forms 
of  notices  and  the  service  thereof,  which  shall  conform,  as  nearly 
as  may  be,  to  those  in  use  in  the  courts  of  the  United  States. 
Any  party  may  appear  before  said  commission  and  be  heard,  in 
person  or  by  attorney.  Every  vote  and  official  act  of  the  com- 
mission shall  be  entered  of  record  and  its  proceedings  shall  be 
public  upon  the  request  of  either  party  interested.  Said  com- 
mission shall  have  an  official  seal,  which  shall  be  judicially  no- 
ticed. Either  of  the  members  of'the  commission  may  administer 
oaths  and  affirmations  and  sign  subpoenas. 

Original  section  seventeen,  except  the  words  ''and  sign  sub- 
poenas" added  at  the  end  by  act  March  2,  1889. 

Under  authority  of  this  section,  the  commission  has  fornuilated 
rules  of  procedure,  ante  §§  167,  168. 

§  561.  Salaries  and  expenses  of  the  commission. — That  each 
commissioner  shall  receive  an  annual  salary  of  ten  thousand  dol- 
lars, payable  in  the  same  manner  as  the  judges  of  the  courts  of 
the  United  States.  The  commission  shall  appoint  a  secretary^ 
who  shall  receive  an  annual  salary  of  three  thousand  five  hun- 
dred dollars,  payable  in  like  manner.  The  commission  shall  have 
authority  to  employ  and  fix  the  compensation  of  such  other  em- 
ployees as  it  may  find  necessary  to  the  proper  performance  of 
its  duties.  Until  otherwise  provided  by  law,  the  commission 
may  hire  suitable  offices  for  its  use,  and  shall  have  authority  to 
procure  all  necessary  office  supplies.  AYitn esses  summoned  be- 
fore the  commission  shall  be  paid  the  same  fees  and  mileage  that 
are  paid  witnesses  in  the  courts  of  the  United  States. 

All  of  the  expenses  of  the  commission,  including  all  necessary 
expenses  for  transportation  incurred  by  the  commissioners,  or 
by  their  employees  under  their  orders,  in  making  any  investiga- 
tion, or  upon  official  business  in  any  other  places  than  the  city 
of  Washington,  shall  be  allowed  and  paid  on  the  presentation 
of  itemized  vouchers  therefor  approved  by  the  chairman  of  the 
commission. 


§  562.  [  Acts  Regulating  Commerce.  481 

Section  eighteen  as  amended  by  act  of  March  2,  1889. 

The  original  act  made  the  employment  and  salaries  of  em- 
ployees subject  to  the  approval  of  the  Secretary  of  the  Interior, 
and  directed  that  cabinet  officer  to  furnish  the  commission  with 
suitable  offices.  The  section  as  it  now  is,  is  the  amendment  of 
March  2,  1889,  changing  the  original  act  in  the  above  two  par- 
ticulars. The  salary  up  to  June  29,  1906,  was  seven  thousand 
five  hundred  dollars.  The  present  salary  is  made  to  conform  to 
section  twenty -four  of  the  present  act.  Cited,  IMoseley  v.  United 
States,  35  Ct.  Claims  355;  United  States  v.  Mosley,  187  U.  S. 
322,  47  L.  Ed.  198,  23  Sup.  Ct.  90. 

§  562.  Principal  office  of  commission  in  Washington,  but  may 
prosecute  inquiries  elsewhere. — The  principal  office  of  the  com- 
mission shall  be  in  the  city  of  Washington,  where  its  general 
sessions  shall  be  held ;  but  whenever  the  convenience  of  the  pub- 
lic or  the  parties  may  be  promoted,  or  delay  or  expense  prevented 
thereby,  the  commission  may  hold  special  sessions  in  any  part  of 
the  United  States.  It  may,  by  one  or  more  of  the  commissioners, 
prosecute  any  inquiry  necessary  to  its  duties,  in  any  part  of  the 
United  States,  into  any  matter  or  question  of  fact  pertaining  to 
the  business  of  any  common  carrier  subject  to  the  provisions  ol 
this  act. 

Section  nineteen  as  originally  enacted. 

The  commission,  or  a  portion  of  its  members,  frequently  hold 
sessions  out  of  Washington  for  the  purpose  of  taking  evidence 
in  complaints  filed  with  it. 

§  563.  Annual  reports  required  and  what  they  shall  contain. 
Penalties  for  failure  to  make. — That  the  commission  is  hereby  au- 
thorized to  require  annual  reports  from  all  common  carriers  sub- 
ject to  the  provisions  of  this  act,  and  from  the  owners  of  all 
railroads  engaged  in  interstate  commerce  as  defined  in  this  act; 
to  prescribe  the  manner  in  which  such  reports  shall  be  made,  and 
to  require  from  such  carriers  specific  answers  to  all  questions 
upon  which  the  connnission  may  need  information.  Such  annual 
reports  shall  sliow  in  detail  the  amount  of  capital  stock  issued, 
the  amounts  paid  tlierefor,  and  tlie  manner  of  payment  for  the 
same;  the  dividends  |)ai(I,  Ihc  sui-plns  fund,  if  ajiy,  and  tlie 
number  of  stockholders;  the  funded  and  floating  debts  and  the 
interest  paid  thereon;  the  cost  and  value  of  the  carrier's  prop- 
erty, franchises  and  ('(juipitienls;  llie  number  of  employees  and 
the  salaries  paid  each  class;  the  accidents  to  passengers,  em- 


482  Acts  Regulating  Commerce,  [§  563. 

ployees,  and  other  persons,  and  the  causes  thereof;  the  amounts 
expended  for  iniproveiiicnts  each  3'ear,  how  expended,  and  tht 
character  of  siicli  im]>r()vemonts;  the  earnings  and  receipts  from 
each  branch  of  business  and  from  all  sources;  the  operating  and 
other  expenses;  the  balances  of  profit  and  loss;  and  a  complete 
exhibit  of  the  financial  operations  of  the  carrier  each  year,  in- 
cluding an  annual  balance  sheet.  Such  reports  shall  also  con- 
tain such  information  in  relation  to  rates  or  regulations  concern- 
ing fares  or  freights,  or  agreements,  arrangements,  or  contracts 
affecting  the  same  as  the  commission  may  require ;  and  the  com- 
mission may,  in  its  discretion,  for  the  purpose  of  enabling  it 
the  better  to  carry  out  the  purposes  of  this  act,  prescribe  a 
period  of  time  within  which  all  common  carriers  subject  to  the 
provisions  of  this  act  shall  have,  as  near  as  may  be,  a  uniform 
system  of  accounts,  and  the  manner  in  which  such  accounts  shall 
be  kept. 

Said  detailed  reports  shall  contain  all  the  required  statistics 
for  the  period  of  twelve  months  ending  on  the  thirtieth  day  of 
June  in  each  year,  and  shall  be  made  out  under  oath  and  filed 
with  the  commission,  at  its  office  in  Washington,  on  or  before 
the  thirtieth  day  of  September  then  next  following,  unless  ad- 
ditional time  be  granted  in  any  case  by  the  commission ;  and  if 
any  carrier,  person,  or  corporation  subject  to  the  provisions  of 
this  act  shall  fail  to  make  and  file  said  annual  reports  within  the 
time  above  specified,  or  within  the  time  extended  by  the  commis- 
sion for  making  and  filing  the  same,  or  shall  fail  to  make  spe- 
cific answer  to  any  question  authorized  by  the  provisions  of  this 
section  within  thirty  days  from  the  time  it  is  lawfully  required 
so  to  do,  such  parties  shall  forfeit  to  the  United  States  the  sum 
of  one  hundred  dollars  for  each  and  every  day  it  shall  continue 
to  be  in  default  with  respect  thereto.  The  commission  shall  also 
have  authority  to  require  said  carriers  to  file  monthly  reports  of 
earnings  and  expenses  or  special  reports  within  a  specified 
period,  and  if  any  such  carrier  shall  fail  to  file  such  reports 
Avithin  the  time  fixed  by  the  commission  it  shall  be  subject  to  the 
forfeiture  last  above  provided. 

Said  forfeitures  shall  be  recovered  in  the  manner  provided 
for  the  recovery  of  forfeitures  under  the  provisions  of  this  act. 

The  oath  required  by  this  section  may  be  taken  before  any 
person  authorized  to  administer  an  oath  by  the  laws  of  the  state 
in  which  the  same  is  taken. 


§  563.]  Acts  Kegulating  Commerce.  483 

First  four  paragraphs  of  section  twenty  as  amended  by  the 
act  of  June  29,  1906. 

The  original  section  read : 

"That  the  commission  is  hereby  authorized  to  require  annual 
reports  from  all  common  carriers  subject  to  the  provisions  of 
this  act.  to  fix  the  time  and  prescribe  the  manner  in  which  such 
reports  shall  be  made,  and  to  require  from  such  carriers  specific 
answers  to  all  questions  upon  which  the  commission  may  need 
information.  Such  annual  reports  shall  show  in  detail  the 
amount  of  capital  stock  issued,  the  amounts  paid  therefor,  and 
the  manner  of  payment  for  the  same ;  the  dividends  paid,  the 
surplus  fund,  if  any,  and  the  number  of  stockholders ;  the  funded 
and  floating  debts  and  the  interest  paid  thereon ;  the  cost  and 
value  of  the  carrier's  property,  franchises  and  equipment;  the 
number  of  employees  and  the  salaries  paid  each  class;  the 
amounts  expended  for  improvements  each  year,  how  expended, 
and  the  character  of  such  improvements;  the  earnings  and  re- 
ceipts from  each  branch  of  business  and  from  all  sources ;  the 
operating  and  other  expenses ;  the  balances  of  profit  and  loss ; 
and  a  complete  exhibit  of  the  financial  operations  of  the  car- 
rier each  year,  including  an  annual  balance  sheet.  Such  re- 
ports shall  also  contain  such  information  in  relation  to  rates 
or  regulations  concerning  fares  or  freights,  or  agreements,  ar- 
rangements, or  contracts  with  other  common  carriers,  as  the  com- 
mission may  require ;  and  the  said  commission  may,  within  its 
discretion,  for  the  purpose  of  ennabling  it  the  better  to 
carry  out  the  purposes  of  this  act,  prescribe  (if  in  the 
opinion  of  the  commission  it  is  practicable  to  prescribe  such  uni- 
formity and  methods  of  keeping  accounts),  a  period  of  time 
within  which  all  common  carriers  subject  to  the  provisions  of 
this  act  shall  have,  as  near  as  may  be,  a  uniform  system  of  ac- 
counts, and  the  manner  in  which  such  accounts  shall  be  kept." 

The  commission  formerly  required  an  apportionment  of  ex- 
penses between  freight  and  passenger  business,  this  being  found 
to  be  arbitrary  and  valueless  was  discontinued.  Consolidated 
Forwarding  Co.  v.  So.  Ky.  Co.,  10  I.  C.  C.  R.  590,  600.  The  old 
law  did  not  apply  to  a  carrier  doing  purely  intrastate  business. 
Int.  Com.  Com.,  v.  Bellaire,  Z.  &  C.  Ry.  Co..  77  Fed.  942;  United 
States  V.  Chicago,  K.  &  S.  R.  Co.,  81  Fed.  783.  But  does  apply 
wIk'h  the  state  carrier  joins  in  a  through  rate  of  charges.  Ignited 
States  ex  rel.  Int.  Com.  Com.  v.  Seaboard  Ry.  Co.,  82  Fed.  563, 


•184  Acts  Kegflating  Commerce.  [§564. 

but  mandamus  should  not  issue  to  compel  a  report  by  an  officer 
who  has  resigned.  Same  case,  85  Fed.  955.  Act  applies  when 
state  carrier  engages  in  transporting  interstate  conmierce,  even 
though  not  on  a  through  bill  of  lading  and  charging  its  full  local 
charges.  United  States  v.  Colorado  &  N.  W.  R.  Co.,  157  Fed. 
321,  342,  85  C.  C.  A.  27.  Language  from  this  section  quoted  as 
showing  the  scope  of  the  commission's  power  to  make  investiga- 
tions. Int.  Com.  Com.  v.  Harriman,  157  Fed.  432,  438.  Re- 
versed. Harriman  v.  Int.  Com.  Com.,  211  U.  S.  407,  53  L.  Ed. 
,  29  Sup.  Ct.  115.  Federal  courts  prior  to  June  29,  1906, 
had  no  jurisdiction  by  original  proceeding  in  mandamus  to  com- 
pel filing  of  reports.  United  States  v.  Lake  S.  &  M.  S.  Ry.  Co., 
197  U.  S.  536,  49  L.  Ed.  870,  25  Sup.  Ct.  538.  States  may  re- 
quire reports  not  inconsistent  with  act  of  Congress.  People  v. 
Chicago,  I.  &  L.  Ry.  Co.,  223  111.  581,  79  N.  E.  144. 

§  564.  Commission  may  prescribe  form  of  keeping  accounts 
and  inspect  same. — The  commission  may,  in  its  discretion,  pre- 
scribe the  forms  of  any  and  all  accounts,  records,  and  memoranda 
to  be  kept  by  carriers  subject  to  the  provisions  of  this  act,  in- 
cluding the  accounts,  records,  and  memoranda  of  the  movement 
of  traffic  as  well  as  the  receipts  and  expenditures  of  moneys. 
The  commission  shall  at  all  times  have  access  to  all  accounts, 
records,  and  memoranda  kept  by  carriers  subject  to  this  act,  and 
it  shall  be  unlawful  for  such  carriers  to  keep  any  other  accounts, 
records,  or  memoranda  than  those  prescribed  or  approved  by  the 
commission,  and  it  may  employ  special  agents  or  examiners,  who 
shall  have  authority  under  the  order  of  the  commission  to  inspect 
and  examine  any  and  all  accounts,  records,  and  memoranda  kept 
by  such  carriers.  This  provision  shall  apply  to  receivers  of  car- 
riers and  operating  trustees. 

Fifth  paragraph  of  section  twenty  as  amended  by  act  June 
29,  1906. 

In  compliance  with  and  under  the  authority  of  this  section,  the 
commission  has  prescribed  an  elaborate  and  uniform  system  of 
accounts  for  carriers  subject  to  the  act.  Pierce's  Digest  Deci- 
sions of  Interstate  Commerce  Commission.  825-1178. 

§  565.  Penalties  for  failure  to  keep  accounts  and  for  falsify- 
ing: the  record. — In  case  of  failure  or  refusal  on  the  part  of  any 
such  carrier,  receiver,  or  trustee  to  keep  such  accounts,  records, 
and  memorpnda  on  the  books  and  in  the  manner  prescribed  by 
the  commission,  or  to  submit  such  accounts,  records,  or  mem- 


§  566,]  Acts  Regulating  Commerce.  485 

oranda  as  are  kept  to  the  inspection  of  the  commission  or  any  of 
its  authorized  agents  or  examiners,  such  carrier,  receiver,  or 
trustee  shall  forfeit  to  the  United  States  the  sum  of  five  hundred 
dollars  for  each  such  offense  and  for  each  and  every  day  of  the 
continuance  of  such  offense,  such  forfeitures  to  be  recoverable  in 
the  same  manner  as  other  forfeitures  provided  for  in  this  act. 

Any  person  who  shall  willfully  make  any  false  entry  in  the 
accomits  of  any  book  of  accounts  or  in  any  record  or  memoranda 
kept  by  a  carrier,  or  who  shall  willfully  destroy,  mutilate,  alter, 
or  by  any  other  means  or  device,  falsify  the  record  of  any  such 
account,  record,  or  memoranda,  or  who  shall  willfully  neglect  or 
fail  to  make  full,  true,  and  correct  entries  in  such  accounts, 
records,  or  memoranda  of  all  facts  and  transactions  appertain- 
ing to  the  carrier's  business,  or  shall  keep  any  other  accounts, 
records,  or  memoranda  than  those  prescribed  or  approved  by  the 
commission,  shall  be  deemed  guilty  of  a  misdemeanor  and  shall 
be  subject,  upon  conviction  in  any  court  of  the  United  States  of 
competent  jurisdiction,  to  a  fine  of  not  less  than  one  thousand 
dollars  nor  more  than  five  thousand  dollars,  or  imprisonment  for 
a  term  not  less  than  one  year  nor  more  than  three  years,  or  both 
such  fine  and  imprisonment. 

Sixth  and  seventh  paragraphs  of  section  twenty  as  amended 
by  act  June  29,  1906. 

§  566.  Penalty  for  an  examiner  divulging  information  re- 
ceived as  such. — Any  examiner  who  divulges  any  fact  or  informa- 
tion which  may  come  into  his  knowledge  during  the  course  of 
such  examination,  except  in  so  far  as  he  may  be  directed  by  the 
commission  or  by  a  court  or  judge  thereof,  shall  be  subject, 
upon  conviction  in  any  court  of  the  United  States  of  competent 
jurisdiction,  to  a  fine  of  not  moi-e  than  five  thousand  dollars  or 
imprisonment  for  a  term  not  exceeding  two  years,  or  both. 

Eighth  paragraph  of  section  twenty  as  amended  by  act  June 
29,  1906. 

§  567.  United  States  circuit  and  district  courts  may,  upon  ap- 
plication of  Attorney-General  at  request  of  commission,  enforce 
provisions  of  act. — That  the  circuit  and  disti-ict  courts  of  llic 
I'nited  States  shall  have  jurisdiction,  upon  the  ajiplicMtion  of 
the  Attorney-Genera]  at  the  reciucst  of  the  comiiiission,  alleging 
a  failure  to  comply  willi  or  a  violation  of  any  of  llic  provisions 
of  said  act  to  regulate  commerce  or  oF  nny  act  supplementary 
thereto  or  amendatory  thereof  by  any  common  carrier,  to  issue 


486  Acts  Regulating  Commerce.  [§  568. 

a  writ  or  writs  of  mandamus  commanding  such  common  carrier 
to  comply  with  the  provisions  of  said  acts,  or  any  of  them. 

Ninth  paragraph  of  section  twenty  as  amended  by  act  June 
29,  1906. 

The  authority  with  reference  to  reports  of  the  carriers  did 
not  exist  prior  to  the  Hepburn  act.  United  States  v.  Lake  S.  & 
M.  S.  Ry.  Co.,  197  U.  S.  536,  49  L.  Ed.  870,  25  Sup.  Ct.  538. 

§  568.  Commission  may  employ  agents  or  examiners. — And  to 
carry  out  and  give  effect  to  the  provisions  of  said  acts,  or  any  of 
them,  the  conunission  is  hereby  authorized  to  employ  special 
agents  or  examiners  who  shall  have  power  to  administer  oaths, 
examine  witnesses,  and  receive  evidence. 

Tenth  paragraph  of  section  twenty  as  amended  by  act  Jime 
29,  1906. 

§  569.  Receiving  carrier  liable  for  loss,  remedy  cumulative. — 
That  any  common  carrier,  railroad,  or  transportation  company 
receiving  property  for  transportation  from  a  point  in  one  state 
to  a  point  in  another  state  shall  issue  a  receipt  or  bill  of  lading 
therefor,  and  shall  be  liable  to  the  lawful  holder  thereof  for 
any  loss,  damage,  or  injury  to  such  property  caused  by  it  or  by 
any  cormnon  carrier,  railroad,  or  transportation  company  to 
which  such  property  may  be  delivered  or  over  whose  line  or  lines 
such  property  may  pass,  and  no  contract,  receipt,  rule,  or  regu- 
lation shall  exempt  such  common  carrier,  railroad,  or  transpor- 
tation company  from  any  liability  hereby  imposed:  Provided, 
That  nothing  in  this  section  shall  deprive  any  holder  of  such 
receipt  or  bill  of  lading  of  any  remedy  or  right  of  action  which 
he  has  under  existing  law. 

That  the  common  carrier,  railroad,  or  transportation  company 
issuing  such  receipt  or  bill  of  lading  shall  be  entitled  to  recover 
from  the  common  carrier,  railroad,  or  transportation  company 
on  whose  line  the  loss,  damage,  or  injury  shall  have  been  sus- 
tained the  amoimt  of  such  loss,  damage,  or  injury  as  it  may  be 
required  to  pay  to  the  owners  of  such  property,  as  may  be  evi- 
denced by  any  receipt,  judgment,  or  transcript  thereof. 

Last  two  paragraphs  of  section  twenty  as  amended  by  act 
Jime  29,  1906. 

This  section  is  fully  and  ably  discussed  and  authorities  cited 
in  Re  Released  Rates,  13  I.  C.  C.  R.  550,  et.  seq.  Provision  con- 
stitutional. Smeltzer  v.  St.  L.  &  S.  F.  R.  Co.,  158  Fed.  649. 
Riverside  Mills  v.  Atlantic  C.  L.  R.  Co.,  168  Fed.  987,  990.    A 


§  570.]  Acts  Regulating  Commerce.  487 

bill  of  lading  limiting  liability  to  fifty  dollars  void.  Greenwall 
V.  Weir,  111  N.  Y.  Sup.  235,  59  Misc.  Rep.  431 ;  Schutte  v.  Weir, 
111  N.  Y.  Sup.  240,  59  :\Iiss.  Rep.  438 ;  Silverman  v.  Weir,  114 
N.  Y.  Sup.  6.  Section  valid.  So.  Pac.  Co.  v.  Crenshaw  Bros. 
5  Ga.  App.  675,  65  S.  E.  865.  Galveston,  H.  &  S.  A.  Ry.  Co., 
V.  Crow,  117  S.  W.  170.  Tex.  Civ.  App. 

§  570.  Annual  Reports  by  commission  to  Congress. — That  the 
commission  shall,  on  or  before  the  first  day  of  December  in  each 
year,  make  a  report,  which  shall  be  transmitted  to  Congress,  and 
copies  of  which  shall  be  distributed  as  are  the  other  reports  trans- 
mitted to  Congress.  This  report  shall  contain  such  information 
and  data  collected  by  the  commission  as  may  be  considered  of 
value  in  the  determination  of  questions  connected  with  the  reg- 
ulation of  commerce,  together  with  such  recommendations  as  to 
additional  legislation  relating  thereto  as  the  commission  may 
deem  necessary ;  and  the  names  and  compensation  of  the  per- 
sons employed  by  said  commission. 

Section  twenty-one  as  amended  by  act  ]\Iarch  2,  1889. 

The  original  act  said  "reports  issued  from  the  Interior  De- 
partment," where  the  present  act  says  "reports  transmitted  to 
Congress."  The  amendment  also  added  the  words,  "and  the 
names  and  compensation  of  the  persons  employed  by  said  com- 
mission." 

Cited  in  discussing  the  scope  of  the  powers  of  the  commission. 
United  States  v.  Lake  S.  &  M.  S.  Ry.  Co.,  197  U.  S.  536,  49  L. 
Ed.  870,  25  Sup.  Ct.  538 ;  Harriman  v.  Int.  Com.  Com.,  211  U. 
S.  417,  420,  421,  53  L.  Ed.        ,  29  Sup.  Ct.  115. 

§  571.  Circumstances  under  which  reduced  or  free  fares  and 
rates  may  be  given. — That  nothing  in  this  act  shall  prevent  the 
carriage,  storage,  or  handling  of  property  free  or  at  reduced 
rates  for  the  United  States,  state,  or  municipal  governments,  or 
for  charitable  purposes,  or  to  and  from  fairs  and  expositions  for 
exhibition  thereat  (or  the  free  carriage  of  destitute  and  home- 
less persons  transported  by  charitable  societies,  and  the  neces- 
sary agents  employed  in  such  transportation),  or  the  issuance  of 
mileage,  excursion,  or  commutation  passenger  tickets;  nothing 
in  this  act  shall  be  construed  to  prohibit  any  common  carrier 
from  giving  reduced  rates  to  ministers  of  religion  (or  to  munici- 
pal governments  for  the  transportation  of  indigent  persons,  or 
to  the  inmates  of  the  National  Homes  or  State  Homes  for  Dis- 
abled Volunteer  Soldiers,  and  of  Soldiers'  and  Sailors'  Orphan 


488  Acts  Regulating  Commerce.  [§  571. 

Homes,  including  those  about  to  enter  and  those  returning  home 
after  discharge,  under  arrangements  with  the  boards  of  man- 
agers of  said  homes)  ;  nothing  in  this  act  shall  be  construed  to 
prevent  railroads  from  giving  free  carriage  to  their  own  officers 
and  employees,  or  to  prevent  the  principal  officers  of  any  rail- 
road company  or  companies  from  exchanging  passes  or  tickets 
with  other  railroad  companies  for  their  officers  and  employees. 

Part  of  section  twenty-two  as  amended  by  act  March  2,  1889. 

The  original  act  used  the  words  ''apply  to"  in  the  first  line 
where  the  amended  act  uses  the  word  ' '  prevent. ' '  The  words  in 
brackets  in  the  above  copied  section  were  added  by  the  act  of 
March  2,  1889. 

Individuals  desiring  to  make  proposals  to  sell  the  government 
Indian  supplies  may  receive  special  rates.  Re  Indian  Supplies. 
1  I.  C.  R.  22.  Pass  issued  to  induce  the  holder  to  throw  busi- 
ness to  carrier  illegal.  Slater  v.  N.  Pac.  R.  Co.,  2  I.  C.  C.  R. 
359,  2  I.  C.  R.  243.  Men  eminent  for  public  service  not  on  that 
account  alone  entitled  to  use  passes.  Re  Carriage  of  Persons 
Free  or  at  Reduced  Rates.  5  I.  C.  C.  R.  69,  3  I.  C.  R.  717.  Il- 
legal to  grant  pass  to  members  of  city  council.  Harvey  v.  L. 
&  N.  R.  Co.,  5  I.  C.  C.  R.  153,  3  I.  C.  R.  793.  Land  and  immi- 
gration agents  not  entitled  to  free  pass.  Re  Complaint  of  Illi- 
nois Central  R.  Co.  12  I.  C.  C.  R.  7.  Rule  announced  as  to  em- 
ployees of  telegraph  companies.  Re  Railroad  Telegraph  Con- 
tracts. 12  I.  C.  C.  R.  10.  Caretakers  of  newspapers  not  ex- 
cepted by  section.  Re  Free  Transportation  of  Newspaper  Em- 
ployees. 12  I.  C.  C.  R.  15.  Nor  are  employees  of  baggage  ex- 
press companies.  Re  Right  of  Railroad  Companies  to  Exchange 
Transportation  with  Transfer  Companies.  12  I.  C.  C.  R.  39. 
Section  cited.  Export  Shipping  Co.  v.  Wabash  R.  Co..  14  1.  C.  C. 
R.  437,  455.  Exception  does  not  apply  to  families  of  officers  or 
employees.  Ex  parte  Koehler,  31  Fed.  315,  12  Sawy.  446.  Sec- 
tion as  originally  enacted  by  making  certain  exceptions  was  not 
intended  to  prohibit  party  rate  tickets.  Int.  Com.  Com.  v.  B.  & 
0.  R.  Co.,  43  Fed.  37,  45,  3  I.  C.  R.  192.  Affirmed,  with  same 
holding,  145  U.  S.  263,  36  L.  Ed.  699,  12  Sup.  Ct.  844.  To  issue 
pass  to  person  not  excepted  by  section  is  illegal  discrimination. 
Re  Charge  to  Grand  Jury.  66  Fed.  146.  Exceptions  do  not 
apply  to  officers  of  express  companies.  United  States  v.  Well 
Fargo  Express  Co.,  161  Fed.  606,  609.  Affirmed.  American 
Ex.  Co.  and  other  Express  Co's.  v.  United  States,  212  U.  S. 


§  572.]  Acts  Kegi'lating  Commerce.  489 

522.  53  L.  Ed.  ,  29  Sup.  Ct.  .  Publishers  can  not  pay  for 
transportation  by  advertising.  United  States  v.  Chicago,  I.  & 
L.  Ry.  Co.,  163  Fed.  114.  Does  not  prohibit  free  transportation 
of  employees  of  the  Federal  Government  engaged  in  the  postal 
service.     18  Op.  Atty.-Gen.  587. 

§  572.  Existing-  remedies  not  abridged  or  altered.  Pending 
litigation  not  affected. — And  nothing  in  this  act  contained  shall 
in  any  way  abridge  or  alter  the  remedies  now  existing  at  com- 
mon law  or  by  statute,  but  the  provisions  of  this  act  are  in  addi- 
tion to  such  remedies:  Provided,  That  no  pending  litigation 
shall  in  any  way  be  affected  by  this  act. 

Part  of  section  twenty-two  as  originally  enacted. 

Right  of  courts  to  enjoin  an  illegal  advance  in  rates  before 
they  become  effective  not  supplanted  by  special  remedies  granted 
l)y  the  act  to  regulate  commerce.  Tift  v.  So.  Ry.  Co.,  123  Fed. 
789,  138  Fed.  753.  Affirmed.  So.  Ry.  Co.  v.  Tift,  148  Fed.  1021, 
206  U.  S.  428,  51  L.  Ed.  1124,  27  Sup.  Ct.  709 ;  Jewett  Bros.  v. 
Chicago,  M.  &  St.  P.  R.  Co.,  156  Fed.  160;  Kalispell  Lumber  Co. 
V.  Great  N.  R.  Co.,  157  Fed.  845.  Reversed  because  rate  had  be- 
come effective  before  injunction  applied  for.  165  Fed.  25. 
C.  C.  A.  .  Kiser  v.  Cent,  of  Ga.  Ry.  Co.,  158  Fed.  193; 
Macon  Grocery  Co.  v.  Atlantic  C.  L.  R.  Co.,  163  Fed.  736.  Re- 
versed. Atlantic  C.  L.  R.  Co.  v.  iMacon  Grocery  Co.,  166  Fed. 
206,  C.  C.  A.  .  Nor.  Pac.  Ry.  Co.  v.  Pacific  Coast  Lumber 
:\Ifg.  Asso..  165  Fed.  1,  C.  C.  A.  .  Union  Pac.  R.  Co.  v. 
Oregon  &  W.  L.  Mfg.  Asso.,  165  Fed.  13,  C.  C.  A.  .  Contra 
if  the  rates  have  become  effective.  Potlatch  Lumber  Co.  v.  Spo- 
kane Falls  &  N.  Ry.  Co.,  157  Fed.  588;  Great  N.  Ry.  Co.  v. 
Kalispell  Lumber  Co.,  165  Fed.  25,  C.  C.  A.  .  Circuit 
courts  can  not  enjoin  the  taking  effect  of  an  illegal  advance 
prior  to  action  by  the  Interstate  Commerce  Commission.  xVtltn- 
tic  Coast  L.  R.  Co.  v.  Macon  Grocery  Co.,  166  Fed.  206,  C.  C. 
A.  .  While  a  court  has  jurisdiction  to  enjoin  an  illegal  ad- 
vance before  it  becomes  effective,  it  cannot  do  so  merely  as  an- 
cillary to  a  complaint  before  the  commission.  Jewett  Bros.  v. 
Chicago,  M.  &  St.  P.  Ry.  Co.,  156  Fed.  160.  The  cases  holding 
that  injunctions  may  be  granted,  supra,  also  hold  that  jurisdic- 
tion in  the  Federal  courts  being  exclusive,  suit  may  be  brought 
wherever  the  defendant  can  be  found  and  served.  In  Sunder- 
land Bros.  V.  Chicago,  R.  I.  &  P.  R.  Co.,  158  Fed.  877,  it  was  held 
that  suit  could  only  be  brought  in  the  district  of  the  residence 


490  Acts  Eegulating  Commerce.  [§  573. 

of  either  the  complainant  or  the  defendant.  Notwithstanding 
this  section,  courts  have  no  jurisdiction  to  award  damages  for 
excessive  rates  prior  to  a  determination  by  the  commission  that 
such  rates  are  excessive.  Tex.  &  Pac.  Ry.  Co.  v.  Abilene  Cotton 
Oil  Co.,  204  U.  S.  426,  44C,  51  L.  Ed.  553,  56],  27  Sup.  Ct.  350. 
But  this  decision  does  not  mean  that  an  illegal  advance  may  not 
be  enjoined.  So.  Ry.  Co.  v.  Tift,  206  IT.  S.  428,  51  L.  Ed.  112,  27 
Sup.  Ct.  709.  Same  effect  as  Abilene  case,  supra.  Gatton  v. 
Chicago  etc.,  R.  Co.,  95  Iowa  113. 

§  573.  Interchangeable  mileage  tickets,  how  issued. — Provid- 
ed further,  That  nothing  in  this  act  shall  prevent  the  issuance  of 
joint  interchangeable  five-thousand-mile  tickets,  with  special 
privileges  as  to  the  amount  of  free  baggage  that  may  be  carried 
under  mileage  tickets  of  one  thousand  or  more  miles.  But  be- 
fore any  common  carrier,  subject  to  the  provisions  of  this  act, 
shall  issue  any  such  joint  interchangeable  mileage  tickets  with 
special  privileges,  as  aforesaid,  it  shall  file  with  the  Interstate 
Commerce  Commission  copies  of  the  joint  tariffs  of  rates,  fares, 
or  charges  on  which  such  joint  interchangeable  mileage  tickets 
are  to  be  based,  together  with  specifications  of  the  amount  of  free 
baggage  permitted  to  be  carried  under  such  tickets,  in  the  same 
manner  as  common  carriers  are  required  to  do  with  regard  to 
other  joint  rates  by  section  six  of  this  act ;  and  all  the  pro- 
visions of  said  section  six  relating  to  joint  rates,  fares,  and 
charges  shall  be  observed  by  said  common  carriers  and  enforced 
by  the  Interstate  Commerce  Commission  as  fully  with  regard  to 
such  joint  interchangeable  mileage  tickets  as  with  regard  to 
other  joint  rates,  fares,  and  charges  referred  to  in  said  section 
six.  It  shall  be  unlawful  for  any  common  carrier  that  has  issued 
or  authorized  to  be  issued  any  such  joint  interchangeable  mileage 
tickets  to  demand,  collect,  or  receive  from  any  person  or  persons 
a  greater  or  less  compensation  for  transportation  of  persons  or 
baggage  under  such  joint  interchangeable  mileage  tickets  than 
that  required  by  the  rate,  fare,  or  charge  specified  in  the  copies 
of  the  joint  tariff  of  rates,  fares,  or  charges  filed  with  the  com- 
mission in  force  at  the  time.  The  provisions  of  section  ten  of 
this  act  shall  apply  to  any  violation  of  the  requirements  of  this 
proviso. 

Proviso  to  section  twenty-two  added  by  the  act  of  February 
8,  1895. 

Proviso  applies  only  to  the  issuance  of  such  tickets  and  the 


§  574.]  Acts  Eegulating  Commerce.  491 

terms,  conditions  and  the  persons  to  whom  issued  must  be  with- 
out discrimination.  Larrison  v.  Chicago  &  G  .T,  R.  Co.,  1  I. 
C.  C.  R.  147,  1  I.  C.  R.  369.  Excursion  and  commutation  tickets 
are  not  the  basis  for  fixing  price  of  mileage  tickets.  Associated 
Wholesale  Grocers  of  St.  Louis  v.  Mo.  Pac.  R.  Co.,  1  I.  C.  C.  R. 
156,  1  I.  C.  R.  393.  Mileage,  excursion  or  commutation  tickets 
must  be  offered  impartially.  Re  Passenger  Tariffs.  2  I.  C.  C. 
R.  649,  2  I.  C.  T.  445.  Party  rates  should  not  be  lower  than 
contemporaneous  single  tickets.    Pittsburg,  C.  &  St.  L.  R.  Co.  v. 

B.  &  0.  R.  Co.,  3  I.  C.  C.  R.  465,  2  I.  C.  R.  729.  Order  not  en- 
forced. Int.  Com.  Com.  v.  B.  &  0.  R.  Co.,  43  Fed.  37,  145  U.  S. 
263,  36  L.  Ed.  699,  12  Sup.  Ct.  844,  4  I.  C.  R.  92.  Provision 
merely  permissive  and  gives  the  commission  no  power  to  compel 
the  issuance  of  mileage  tickets.     Sprigg  v.  B.  &  0.  R.  Co.,  8  I. 

C.  C.  R.  443,  450.  See  the  able  and  cogent  dissenting  opinion  of 
Mr.  Commissioner  Clements,  457  et  seq.  See  Re  Party  Rate 
Tickets.  12  I.  C.  C.  R.  95.  Export  Shipping  Co.  v.  Wabash  R. 
Co.,  14  I.  C.  C.  R.  437,  455.  Tariff  Circular  No.  15-A,  p.  61,  rule 
53.     Tariff  Circular  17-A,  pp.  75  to  78. 

§  574.  Discrimination  may  be  prevented  by  writ  of  mandamus, 
remedy  cumulative. — That  the  circuit  and  district  courts  of  the 
United  States  shall  have  jurisdiction  upon  the  relation  of  any 
person  or  persons,  firm,  or  corporation,  alleging  such  violation 
by  a  common  carrier,  of  any  of  the  provisions  of  the  act  to  which 
this  is  a  supplement  and  all  acts  amendatory  thereof,  as  prevents 
the  relator  from  having  interstate  traffic  moved  by  said  common 
carrier  at  the  same  rates  as  are  charged,  or  upon  terms  or  condi- 
tions as  favorable  as  those  given  by  said  common  carrier  for 
like  traffic  under  similar  conditions  to  any  other  shipper,  to  issue 
a  writ  or  writs  of  mandamus  against  said  common  carrier,  com- 
manding such  common  carrier  to  move  and  transport  the  traffic, 
or  to  furnish  cars  or  other  facilities  for  transportation  for  the 
party  applying  for  the  writ :  Provided,  That  if  any  question  ol 
fact  as  to  the  proper  compensation  to  the  common  carrier  for  the 
service  to  be  enforced  by  the  writ  is  raised  by  the  pleadings,  the 
writ  of  peremptory  mandamus  may  issue,  notwithstanding  such 
question  of  fact  is  undetermined,  upon  such  terms  as  to  security, 
payment  of  money  into  the  court,  or  otherwise,  as  the  court  may 
think  proper,  pending  llie  dctci-mination  of  the  question  of  fact: 
Provided,  That  Uw.  j-cniedy  ]iorel)y  given  by  writ  of  mandamus 
shall  be  cumulative,  and  shall  not  be  held  to  exclude  or  inter- 


492  Acts  Eegulating  Commerce.  [§  574. 

fere  with  other  remedies  provided  by  this  act  or  the  act  to  which 
it  is  a  supplement. 

New  section,  section  twenty-three,  added  by  act  ^March  2,  1889, 
and  being  section  ten  of  that  act. 

Cited  in  support  of  the  holding  that  a  carrier  can  not  dis- 
criminate in  favor  of  industries  on  its  own  line  against  indus- 
tries on  a  connecting  line.  Standard  Lime  &  Stone  Co.  v.  Cum- 
berland V.  R.  Co.,  15  1.  C.  C.  R.  620.  Remedy  is  given  only  for 
unjust  discrimination.  United  States  v.  N.  &  W.  Ry.  Co.,  109 
Fed.  831.  Second  suit  abated  pending  appeal  of  the  first  one. 
United  States  v.  Norfolk  &  W.  Ry.  Co.,  114  Fed.  682.  Suit 
brought  under  authority  of  section  and 'amendment  of  Feb.  8, 
1895.  United  States  v.  West  Virginia  N.  R.  Co.,  125  Fed.  252. 
Affirmed,  holding  that  writ  may  run  against  individuals.  West 
Virginia  N.  R.  Co.  v.  United  States,  134  Fed.  198,  67  C.  C.  A. 
220.  Writ  will  not  issue  to  enforce  a  private  contract  for  car 
distribution.  United  States  v.  Norfolk  &  AV.  R.  Co.,  138  Fed. 
849.  Reversed,  holding  that  a  right  exists  for  an  equal  dis- 
tribution of  cars,  and  a  contract  therefor  is  in  aid  of  the  act 
and  may  be  enforced.     Same  style  case,  143  Fed.  266,  74  C.  C. 

A.  404.  ]\landamus  will  not  issue  in  suit  by  United  States  ex- 
cept under  authority  of  a  statute.  United  States  ex  rel.  Knapp 
et  al.  Commissioners  v.  Lake  Shore  &  M.  S.  Ry.  Co.,  197  U.  S. 
536,  49  L.  Ed.  870,  25  Sup.  Ct.  538.  Act  cumulative  and  not 
exclusive  of  preexisting  remedies.  Tift  v.  So.  Ry.  Co.,  123  Fed. 
789,  138  Fed.  753.  Affirmed.  So.  Ry.  Co.  v.  Tift,  ]48  Fed.  1021, 
206  U.  S.  428,  41  L.  Ed.  1124,  27  Sup.  Ct.  709.  Car  distribution 
determined  in  suit  under  section.  United  States  v.  B.  &  0. 
R.  Co.,  154  Fed.  108.  Sustained  in  so  far  as  relief  granted  re- 
lator and  reversed  because  other  relief  not  granted.  United 
States  V.  B.  &  0.  R.  Co.,  155  Fed.  113,  C.  C.  A.  .  This 
section  does  not  prevent  an  individual  from  applying  to  the 
commission,  and  this  even  when  another  operator  has  filed  a 
complaint  for  mandamus.  Merchants  Coal  Co.  v.  Fairmont  Coal 
Co.,  160  Fed.  769,  88  C.  C.  A.  23.  Appealed  to  Supreme  Court. 
163  Fed.  1021,  1022.  Injunction  will  not  issue  to  prevent  con- 
sidering private  cars  in  making  distribution  of  cars  to  coal  com- 
panies. l\kjestic  Coal  &  Coke  Co.  v.  111.  Cent.  R.  Co.,  162  Fed. 
810.  Private  cars  should  be  charged  against  their  o^\Tlers  in 
making  distribution.     United  States  ex  rel.  Pitcairn  Coal  Co.  v. 

B.  &  0.  R.  Co.,  165  Fed.  113. 


§  575.]  Acts  Kegulating  Commerce.  493 

§  575.  Number,  terms,  qualification,  salary  and  appointment 
of  commissioners. — That  the  Interstate  ('ommerce  Commission 
is  hereby  enlarged  so  as  to  consist  of  seven  members  with  terms 
of  seven  years,  and  each  shall  receive  ten  thousand  dollars  an- 
nually. The  qualifications  of  the  commissioners  and  the  manner 
of  the  payment  of  their  salaries  shall  be  as  already  provided  by 
law.  Such  enlargement  of  the  commission  shall  be  accomplished 
through  appointment  by  the  President,  by  and  with  the  advice 
and  consent  of  the  Senate,  of  two  additional  Interstate  Commerce 
Commissioners,  one  for  a  term  expiring  December  thirty-first, 
nineteen  hundred  and  eleven,  one  for  a  term  expiring  December 
thirty-first,  nineteen  hundred  and  tw^elve.  The  terms  of  the 
present  commissioners,  or  of  any  successor  appointed  to  fill  a 
vacancy  caused  by  the  death  or  resignation  of  any  of  the  pres- 
ent commissioners,  shall  expire  as  heretofore  provided  by  law. 
Their  successors  and  the  successors  of  the  additional  commis- 
sioners herein  provided  for  shall  be  appointed  for  the  full  term 
of  seven  years,  except  that  any  person  appointed  to  fill  a  vacancy 
shall  be  appointed  only  for  the  unexpired  term  of  the  commis- 
sioner whom  he  shall  succeed.  Not  more  than  four  commissioners 
shall  be  appointed  from  the  same  political  party. 

Section  twenty-four  added  by  the  act  June  29,  1906. 

§  576.  Existing  laws  as  to  obtaining  testimony  applicable  to 
act. — That  all  existing  laws  relating  to  the  attendance  of  wit- 
nesses and  the  production  of  evidence  and  the  compelling  of  tes- 
timony under  the  act  to  regulate  commerce  and  all  acts  amenda- 
tory thereof  shall  apply  to  any  and  all  proceedings  and  hearings 
under  this  act. 

Section  nine  of  the  act  of  June  29.  1906. 

Cited  in  discussion  of  the  power  of  the  commission  to  make  in- 
vestigations. Harriman  v.  Int.  Com.  Com.,  211  IT.  S.  407,  422, 
53  L.  Ed.         ,  29  Sup.  Ct.  115. 

§  577.  Repealing  conflicting  laws  not  to  affect  pending  suits. 
— That  all  laws  and  parts  of  laws  in  conflict  with  the  provisions 
of  this  act  are  hereby  repealed ;  but  the  amendments  herein 
provided  for  shall  not  affect  causes  now  pending  in  cour'ts  of 
the  United  States,  but  such  causes  shall  be  prosecuted  to  a  con- 
clusion in  the  manner  heretofore  provided  hy  law. 

Softion  ten  of  the  act  June  29.  1906. 

Docs  not  prevent  Ihe  indielineiil  oC  Ihose  violating  the  old 
law.     Cnited  Stales  v.  Standard  Oil  Co.,  148  Fed.  719.  155  Fed. 


494  Acts  Regulating  Commerce.  [§  578. 

305.    Reversed  on  other  grounds.    164  Fed.  376,       C.  C.  A. 

United  States  v.  Chicago,  St.  P.  &  M.  Ry.  Co.,  same  v.  G.  N.  Ry. 

Co..  151  Fed.  84.     Affirmed,  same  ruling.     Great  N.  Ry.  Co. 

V.  United  States,  208  U.  S.  452.  52  L.  Ed.  567,  28  Sup.  c"t. 

Applies  to  rebate  cases  and  an  indictment  good  under  the  Elkins 

law  prior  to  its  amendment  remains  good  since.     United  States 

V.  Delaware,  L.  &  W.  R.  Co.,  152  Fed.  269;  United  States  v. 

New  York  C.  &  H.  R.  R.  Co.,  153  Fed.  630;  Great  N.  Ry.  Co.  v. 

United  States,  155  Fed.  945,  84  C.  C.  A.  93.    Affirmed.    208  U. 

S.  452,  52  L.  Ed.  567.  28  Sup.  Ct.         .    United  States  v.  Great 

N.  R.  Co.,  157  Fed.  288,  290. 

§  578.     Time  of  taking  effect  of  act. — That  this  act  shall  take 

effect  and  be  in  force  from  and  after  its  passage. 

Joint  resolution  of  June  30,  1906,  provides:  "That  the  act 
entitled  "An  act  to  amend  an  act  entitled  'An  act  to  regulate 
commerce,'  approved  February  4,  1887,  and  all  the  acts  amenda- 
tory thereof,  and  to  enlarge  the  powers  of  the  Interstate  Com- 
merce Commission,  shall  take  effect  and  be  in  force  sixty  days 
after  its  approval  by  the  President  of  the  United  States." 

Section  eleven  of  the  act  of  Jime  29,  1906,  and  the  joint  reso- 
lution of  June  30,  1906. 

The  effective  date  of  the  act  of  June  29,  1906,  was  August  28, 
1906.  Nicola,  Stone  &  Myers  Co.  v.  L.  &  N.  R.  Co.,  14  I.  C.  C. 
R.  199,  206. 

Joint  resolution  ineffective  to  prevent  law  becoming  in  force 
on  the  date  of  its  approval  by  the  President.  United  States  v. 
Standard  Oil  Co.,  148  Fed.  719.  Reversed  on  other  grounds. 
Standard  Oil  Co.  v.  United  States.  164  Fed.  376,        C.  C.  A. 

§  579.  Parties  defendant  other  than  carriers  in  suit  to  enforce 
provisions  of  act. — That  in  any  proceeding  for  the  enforcement 
of  the  provisions  of  the  statutes  relating  to  interstate  commerce, 
whether  such  proceedings  be  instituted  before  the  Interstate 
Commerce  Commission  or  be  begun  originally  in  any  circuit 
court  of  the  United  States,  it  shall  be  lawful  to  include  as  par- 
ties, in  addition  to  the  carrier,  all  persons  interested  in  or  af- 
fected by  the  rate,  regulation,  or  practice  under  consideration, 
and  inquiries,  investigations,  orders  and  decrees  may  be  made 
with  reference  to  and  against  such  additional  parties  in  the 
same  manner,  to  the  same  extent,  and  subject  to  the  same  pro- 
visions as  are  or  shall  be  authorized  by  law  with  respect  to  car- 
riers. 


§  580.]  Acts  Regulating  Commerce.  495 

Section  two  of  the  original  act  of  February  19,  1903  (Elkins 
Act). 

In  1888  the  commission  held  that  it  was  proper  to  make  parties 
all  carriers  interested  in  a  through  rate,  though  the  complaint 
was  not  defective  if  only  the  initial  carrier  was  a  party.  Hurl- 
burt  V.  Lake  S.  &  M.  S.  R.  Co.,  2  I.  C.  C.  R.  122,  2  I.  C.  R.  81. 

§  580.  Equitable  proceeding's  may  be  instituted  by  the  com- 
mission to  restrain  discrimination  or  departure  from  published 
rates. — That  whenever  the  Interstate  Commerce  Commission 
shall  have  reasonable  ground  for  belief  that  any  common  carrier 
is  engaged  in  the  carriage  of  passengers  or  freight  traffic  between 
given  points  at  less  than  the  published  rates  on  file,  or  is  com- 
mitting any  discriminations  forbidden  by  law,  a  petition  may 
be  presented  alleging  such  facts  to  the  circuit  court  of  the  United 
States  sitting  in  equity  having  jurisdiction ;  and  when  the  act 
complained  of  is  alleged  to  have  been  committed  or  as  being 
committed  in  part  in  more  than  one  judicial  district  or  state,  it 
may  be  dealt  with,  inquired  of,  tried,  and  determined  in  either 
such  judicial  district  or  state,  whereupon  it  shall  be  the  duty  of 
the  court  summarily  to  inquire  into  the  circumstances,  upon 
such  notice  and  in  such  manner  as  the  court  shall  direct  and 
without  the  formal  pleadings  and  proceedings  applicable  to  or- 
dinary suits  in  equity,  and  to  make  such  other  persons  or  cor- 
porations parties  thereto  as  the  court  may  deem  necessary,  and 
upon  being  satisfied  of  the  truth  of  the  allegations  of  said  peti- 
tion said  court  shall  enforce  an  observance  of  the  published 
tariffs  or  direct  and  require  a  discontinuance  of  such  discrimina- 
tion by  proper  orders,  writs,  and  process,  which  said  orders, 
writs,  and  process  may  be  enforceable  as  well  against  the  parties 
interested  in  the  traffic  as  against  the  carrier,  subject  to  the  right 
of  appeal  as  now  provided  by  law.  It  shall  be  the  duty  of  the 
several  district  attorneys  of  the  United  States,  whenever  the 
Attorney-General  shall  direct,  either  of  his  own  motion  or  upon 
the  request  of  the  Interstate  Commerce  Commission,  to  institute 
and  prosecute  such  proceedings  and  the  proceedings  provided 
for  by  this  act  shall  not  preclude  the  bringing  of  suit  for  the 
recovery  of  damages  by  any  party  injured,  or  any  other  action 
provided  by  said  act  approved  February  fourth,  eighteen  hun- 
dred and  eighty-seven,  entitled  ''An  act  to  regulate  commerce 
and  the  acts  amendatory  thereof." 


496  Acts  Regilatixg  Commerce.  [§  581. 

First  part  of  section  three  of  the  act  February  19,  1903  (El- 
kins  Act),  as  originally  enacted. 

Prior  to  this  amendment  suit  could  be  maintained  in  the  name 
of  the  United  States  to  enjoin  discriminaticm.  United  States  v. 
Mo.  Pac.  K.  Co.,  65  Fed.  903,  5  I.  C.  R.  106.  Affirmed  by  circuit 
court  of  appeals  without  written  opinion.  Reversed,  holding 
that  prior  to  Elkins  Act  such  suit  could  not  be  maintained.  Mo. 
Pac.  R.  Co.  V.  United  States,  189  U.  S.  274,  47  L.  Ed.  811,  23 
Sup.  Ct.  507;  United  States  v.  Atchison,  T.  &  S.  F.  Ry.  Co., 
142  Fed.  176,  185,  186.  Prior  to  this  act  a  shipper  could  enjoin 
a  discrimination  prior  to  action  by  the  commission.  Interstate 
Stock  Yards  v.  Indianapolis  U.  Ry.  Co.,  99  Fed.  472,  483.  Cited 
by  Supreme  Court.  192  U.  S.  568,  570,  48  L.  Ed.  565,  569,  24 
Sup.  Ct.  339.  Under  this  act  violations  occurring  prior  to  its 
passage  could  be  enjoined.  United  States  v.  Mich.  Cent.  R.  Co., 
122  Fed.  544.  May  enjoin  giving  rebates.  United  States  v. 
Milwaukee  Refrigerator  T.  Co.,  145  Fed.  1007,  1010,  citing 
Swift  &  Co.  V.  United  States,  196  U.  S.  375,  49  L.  Ed.  518,  25 
Sup.  Ct.  276.  Suit  prosecuted  under  section.  Armour  Packing 
Co.  V.  United  States,  209  U.  S.  56,  52  L.  Ed.  681,  28  Sup.  Ct. 
428.  May  enjoin  giving  transportation  for  advertising.  United 
States  V.  Chicago,  I.  &  L.  R.  Co.,  163  Fed.  114. 

§  581.  Immunity  and  compulsory  attendance  of  witnesses. 
Production  of  hooks  and  papers. — And  in  proceedings  under  this 
act  and  the  acts  to  regulate  commerce  the  said  courts  shall  have 
the  power  to  compel  the  attendance  of  witnesses,  both  upon  the 
part  of  the  carrier  and  the  shipper,  who  shall  be  required  to 
answer  on  all  subjects  relating  directly  or  indirectly  to  the  mat- 
ter in  controversy,  and  to  compel  the  production  of  all  books 
and  papers,  both  of  the  carrier  and  the  shipper,  which  relate 
directly  or  indirectly  to  such  transaction ;  the  claim  that  such 
testimony  or  evidence  may  tend  to  criminate  the  person  giving 
such  evidence  shall  not  excuse  such  person  from  testifying  or 
such  corporation  producing  its  books  and  papers,  but  no  person 
shall  be  prosecuted  or  subjected  to  any  penalty  or  forfeiture  for 
or  on  accoiuit  of  any  transaction,  matter  or  thing  concerning 
which  he  may  testify  or  produce  evidence,  documentary  or  other- 
Avise,  in  such  proceeding. 

Second  part  of  section  three  of  the  act  of  February  19,  1903 
(Elkins  Act),  as  originally  enacted. 

§  582.     Expediting  act  applicable  to  suits  brought  under  di- 


§  583.]  Acts  Eegulating  Commerce.  497 

rection  of  Attorney-General. — Provided,  That  the  provisions  of 
an  act  entitled  "An  act  to  expedite  the  hearing  and  determina- 
tion of  suits  in  equity  pending  or  hereafter  brought  under  the 
act  of  July  second,  eighteen  hundred  and  ninety,  entiled  ''An 
act  to  protect  trade  and  commerce  against  unlawful  restraints 
and  monopolies."  ''An  act  to  regulate  commerce,"  approved 
February  fourth,  eighteen  hundred  and  eighty-seven,  or  any 
other  acts  having  a  like  purpose  that  may  hereafter  be  enacted, 
approved  February  eleventh,  nineteen  hundred  and  three," 
shall  apply  to  any  case  prosecuted  under  the  direction  of  the 
Attorney-General  in  the  name  of  the  Interstate  Commerce  Com- 
mission. 

Last  part  of  section  three  of  the  act  of  February  19,  1903  (El- 
kins  Act),  as  originally  enacted. 

Cited  holding  that  proviso  did  not  prevent  an  action  by  com- 
mission to  compel  the  production  of  papers.  Int.  Com.  Com.  v. 
Baird,  194  U.  S.  25,  36.  48  L.  Ed.  860.  865,  866,  24  Sup.  Ct.  563. 

§  583.  Repealing  clause  not  affecting  pending  suits  or  accrued 
rights.  When  act  takes  effect. — That  all  acts  and  parts  of  acts 
in  conflict  with  the  provisions  of  this  act  are  hereby  repealed, 
but  such  repeal  shall  not  affect  causes  now  pending,  nor  rights 
which  have  already  accrued,  but  such  causes  shall  be  prosecuted 
to  a  conclusion,  and  such  rights  enforced  in  a  manner  heretofore 
provided  by  law  and  as  modified  by  the  provisions  of  this  act. 

This  act  shall  take  effect  from  its  passage.  Public,  No.  103, 
approved  February  19,  1903. 

Sections  four  and  five  of  act  February  19,  1903  (Elkins  Act), 
as  originally  enacted. 

Section  four  did  not  save  a  suit  prosecuted  to  a  decree  prior  to 
the  enactment  of  the  Elkins  Act.  Mo.  Pac.  E.  Co.  v.  United 
States.  189  U.  S.  274,  47  L.  Ed.  811,  23  Sup.  Ct.  507.  But  prose- 
cution for  injunction  against  acts  committed  prior  to  the  passage 
of  the  Elkins  law  could  be  maintained.  United  States  v.  Mich. 
Cent.  R.  Co.,  122  Fed.  544. 

§  584.  Certain  cases  given  precedence  and  hearing  expedited. 
Hearing  before  three  judges. — Be  it  onncted  by  the  Senate  and 
House  of  Roprosentaives  of  the  Ignited  States  of  America  in 
Congress  asseinblod.  That  in  any  suit  in  equity  pending  or  here- 
after brought  in  any  circuit  court  of  the  United  States  under 
thn  act  entitled  "An  ar-t  to  protect  trade  and  commerce  against 
unlawful    restraints   and    monoplies,"    approved    July    second, 


498  Acts  Regulating  Commerce.  [§585, 

eighteen  linndred  and  ninety,  "An  act  to  regulate  comiiierce," 
approved  February  fourth,  eighteen  hundred  and  eighty-seven, 
or  any  other  acts  having  a  like  purpose  that  hereafter  may  be 
enacted,  wherein  the  United  States  is  complainant,  the  Attorney- 
General  may  file  with  the  clerk  of  such  court  a  certificate  that, 
in  his  opinion,  the  case  is  of  general  public  importance,  a  copy 
of  whicli  shall  be  immediately  furnished  by  such  clerk  to  each 
of  the  circuit  judges  of  the  circuit  in  which  the  ease  is  pending. 
Thereupon  such  case  shall  be  given  precedence  over  others  and 
in  every  way  expedited,  and  be  assigned  for  hearing  at  the 
earliest  practicable  date,  before  not  less  than  three  of  the  circuit 
judges  of  said  circuit,  if  there  be  three  or  more;  and  if  there 
be  not  more  than  two  circuit  judges,  then  before  them  and  such 
district  judge  as  they  may  select.  In  the  event  the  judges  sit- 
ting in  such  case  shall  be  divided  in  opinion,  the  case  shall  be 
certified  to  the  Supreme  Court  for  review  in  like  manner  as  if 
taken  there  by  appeal  as  hereinafter  provided. 

Section  one  of  act  February  11,  1903,  known  as  the  "Expe- 
diting Act.' 

In  So.  Pac.  Ter.  Co.  v.  Int.  Com.  Com.,  166  Fed.  134,  the  sec- 
tion being  under  discussion,  the  court  of  appeals  for  the  Fifth 
Circuit,  Pardee,  Judge,  delivering  the  opinion,  said: 

"This  expediting  act,  fairly  construed,  permits  the  case  to 
proceed  (except  it  is  to  be  given  precedence  and  expedited) 
until  final  hearing  when  it  is  to  be  set  down  before  three  circuit 
judges.  After  final  decree  it  may  be  be  carried  within  60  days 
by  appeal  to  the  Supreme  Court  by  either  party,  and  the  only 
office  left  for  the  certificate  is  in  the  contingency  that  the  judges 
shall  be  unable  to  agree  on  a  final  decree. 

"We  can  find  nothing  further  in  the  acts  requiring  three  cir- 
cuit judges  to  sit  in  any  other  phases  of  the  case  than  the  hearing 
on  application  for  a  preliminary  injunction  and  on  the  final 
hearing.  To  apply  it  to  all  proceedings  in  the  case  is,  in  the 
nature  of  things,  to  defeat  the  very  object  of  the  act,  and  change 
it  from  an  expediting  act  into  a  hindering  and  delaying  act." 

§  585.  Direct  appeal  to  Supreme  Court. — That  every  suit  in 
equity  pending  or  hereafter  brought  in  any  circuit  court  of  the 
United  States  under  any  of  said  acts,  wherein  the  United  States 
is  complainant,  including  cases  submitted  but  not  yet  decided, 
an  appeal  from  the  final  decree  of  the  circuit  court  will  lie  only 
to  the  Supreme  Court  and  must  be  taken  within  sixty  days  from 


§  586.]  Acts  Regulating  Commerce.  499 

the  entry  thereof :  Provided,  That  in  any  case  where  an  appeal 
may  have  been  taken  from  the  final  decree  of  a  circuit  court  to 
the  circuit  court  of  appeals  before  this  act  takes  effect,  the  case 
shall  proceed  to  a  final  decree  therein,  and  an  appeal  may  be 
taken  from  such  decree  to  the  Supreme  Court  in  the  manner 
now  provided  by  law. 

Public  No.  82,  approved  February  11,  1903. 

Section  two  of  the  Expediting  Act,  act  February  11,  1893. 

A  direct  appeal  to  the  Supreme  Court  is  authorized  by  this 
section  from  a  final  decree  in  the  circuit  court  in  a  proceeding 
to  compel  the  production  of  testimony.  Int.  Com.  Com.  v.  Baird, 
194  U.  S.  25,  48  L.  Ed.  860,  24  Sup.  Ct.  563.  Appeal  taken 
from  the  circuit  court  to  the  Supreme  Court  from  an  order 
granting  a  preliminary  injunction  under  the  Sherman  Anti- 
Trust  Act.  Swift  &  Co.  v.  United  States,  196  U.  S.  375,  49  L. 
Ed.  518.  25  Sup.  Ct.  276;  Circuit  court  decree.  United  States 
v.  Swift  &  Co.,  122  Fed.  529. 

§  586.  Compulsory  attendance  of  witnesses,  and  production  of 
papers  provided  for. — Be  it  enacted  by  the  Senate  and  House  of 
Representatives  of  the  United  States  of  America  in  Congress  as- 
sembled. That  no  person  shall  be  excused  from  attending  and 
testifying  or  from  producing  books,  papers,  tariffs,  contracts, 
agreements  and  documents  before  the  Interstate  Commerce  Com- 
mission, or  in  obedience  to  the  subpoena  of  the  commission, 
v.'hether  such  subpoena  be  signed  or  issued  by  one  or  more  com- 
missioners, or  in  any  cause  or  proceeding,  criminal  or  otherwise, 
based  upon  or  growing  out  of  any  alleged  violation  of  the  act 
of  Congress,  entitled  ''An  act  to  regulate  commerce,"  approved 
February  fourth,  eighteen  hundred  and  eighty-seven,  or  of  any 
amendment  thereof  on  the  ground  or  for  the  reason  that  the 
testimony  or  evidence,  documentary  or  otherwise,  required  of 
him,  may  tend  to  criminate  him  or  subject  him  to  a  penalty  or 
forfeiture.  But  no  person  shall  be  prosecuted  or  subjected  to 
any  penalty  or  forfeiture  for  or  on  account  of  any  transaction, 
matter  or  thing,  concerning  which  he  may  testify,  or  produce 
evidence,  documentary  or  otherwise,  before  said  commission,  or 
in  obedience  to  its  subpoena,  or  the  subpoena  of  either  of  them, 
or  in  any  such  case  or  proceeding:  Provided,  That  no  person 
so  testifying  shall  be  exempt  from  prosecution  and  punishment 
For  perjury  committed  in  so  testifying. 

Any  person  who  shall  neglect  or  refuse  to  attend  and  testify, 


500  Acts  Regulating  Commerce.  [§  587, 

or  to  answer  any  lawful  inquiry,  or  to  produce  books,  papers, 
tariffs,  contracts,  agreements,  and  documents,  if  in  his  power  to 
do  so,  in  obedience  to  the  subpa^na  or  lawful  requirement  of  the 
commission,  shall  be  guilty  of  an  offense  and  upon  conviction 
thereof  by  a  court  of  competent  jurisdiction  shall  be  punished  by 
fine  not  less  than  one  hundred  dollars  nor  more  than  five  thou- 
sand dollars,  or  by  imprisonment  for  not  more  than  one  year  or 
by  both  such  fine  and  imprisonment. 

Act  of  February  11,  1893. 

§  587.  Amendment  to  act  making  compulsory  attendance  of 
witnesses  and  production  of  papers. — Be  it  enacted  by  the  Senate 
and  House  of  Representatives  of  the  United  States  of  America 
in  Congress  assembled.  That  under  the  immunity  provisions  in 
the  act  entitled  ''An  act  in  relation  to  testimony  before  the 
Interstate  Commerce  Commission,"  and  so  forth,  approved  Feb- 
ruary eleventh,  eighteen  hundred  and  ninety-three,  in  section 
six  of  the  act  entitled  "An  act  to  establish  the  Department  of 
Commerce  and  Labor,"  approved  February  fourteenth,  nineteen 
hundred  and  three,  and  in  the  act  entitled  "An  act  to  further 
regulate  commerce  with  foreign  nations  and  among  the  states," 
approved  February  nineteenth,  nineteen  hundred  and  three, 
and  in  the  act  entiled  "An  act  making  appropriations  for  the 
legislative,  executive,  and  judicial  expenses  of  the  government 
for  the  fiscal  year  ending  Jime  thirtieth,  nineteen  hundred  and 
four,  and  for  other  purposes,"  approved  February  twenty-fifth, 
nineteen  hundred  and  three,  immimity  shall  extend  only  to  a 
natural  person  who,  in  obedience  to  a  subpoena,  gives  testimony 
under  oath  or  produces  evidence,  documentary  or  otherwise, 
under  oath. 

Public  No.  389,  approved  June  30,  1906. 

Act  June  30,  1906. 


CHAPTER  X. 

Act  to  prevent  cruelty  to  animals  while  in  interstate  transit,  known  as 
the  28-hour  law  act  June  29,  1906,  Chapter  3594,  34  Stat.  L.  607,  U.  S. 
Comp.  St.  Supp.  1907,  p.  918,  Fed.  Stat.  Ann.  Sup.  1907,  p.  25. 

Act  March  4,  1907,  Chapter  2907,   34   Stat.  L.   1260,  at.  seq.,  requiring 
inspection  of  meat. 
§  590.     Time  prescribed   for   feeding  and  unloading  animals  in   transit. 

591.  Feeding  shall  be  at  expense  of  owner,  lien  given  for  food. 

592.  Penalty. 

593.  Meat  inspection  act. 

§  590.  Time  prescribed  for  feeding  and  unloading  animals  in 
transit. — That  no  railroad,  express  company,  car  company,  com- 
mon carrier  other  than  by  water,  or  the  receiver,  trustee,  or  lessee 
of  any  of  them,  whose  road  forms  any  part  of  a  line  of  road  over 
which  cattle,  sheep,  swine,  or  other  animals  shall  be  conveyed 
from  one  state  or  territory  or  the  District  of  Columbia  into  or 
through  another  state  or  territory  or  the  District  of  Columbia, 
or  the  owners  or  masters  of  steam,  sailing,  or  other  vessels  carry- 
ing or  transporting  cattle,  sheep,  swine,  or  other  animals  from 
one  state  or  territory  or  the  District  of  Columbia  into  or  through 
another  state  or  territory  or  the  District  of  Columbia,  shall  con- 
fine the  same  in  cars,  boats  or  vessels  of  any  description  for  a 
period  longer  than  twenty-eight  consecutive  hours  without  un- 
loading the  same  in  a  humane  manner,  into  properly  equipped 
pens  for  rest,  water,  and  feeding,  for  a  period  of  at  least  five 
consecutive  hours,  unless  prevented  by  storm  or  by  other  acci- 
dental or  unavoidable  causes  which  can  not  be  anticipated  or 
avoided  by  the  exercise  of  due  diligence  and  foresight :  Pro- 
vided, That  upon  the  written  request  of  the  owner  or  person  in 
custody  of  that  particular  shipment,  which  written  request  shall 
be  separate  and  apart  from  any  printed  bill  of  lading,  or  other 
railroad  form,  the  time  of  confinement  may  be  extended  to 
thirty-six  hours.  In  estimating  such  confinement,  the  time  con- 
sumed in  loading  and  unloading  shall  not  be  considered,  but  the 
time  during  which  the  animals  have  been  confined  without  such 
rest  or  food  or  water  on  connecting  roads  shall  be  included,  it 

501 


502  28-HouR  Law  [§590. 

being  the  intent  of  this  act  to  prohibit  their  continuous  confine- 
ment beyond  the  period  of  twenty-eight  hours,  except  upon  the 
contingencies  hereinbefore  stated:  Provided,  That  it  shall  not 
be  required  that  sheep  be  unloaded  in  the  nighttime,  but  where 
the  time  expires  in  nighttime  in  case  of  sheep  the  same  may  con- 
tinue in  transit  to  a  suitable  place  for  unloading,  subject  to  tnb 
aforesaid  limitation  of  thirty-six  hours. 

Section  one  of  the  act. 

The  act  of  March  3,  1873,  17  Stat.  L.  584,  R.  S.  U.  S.  §§  4386 
to  4390,  inclusive,  had  the  same  purpose,  though  was  somewhat 
less  comprehensive  than  the  present  law. 

The  old  law,  and  for  that  matter  the  present  law,  did  not 
apply  to  transportation  wholly  within  a  state.  United  States 
V.  East  Tenn.,  Va.  &  Ga.  R.  Co.,  13  Fed.  642.  The  statute  con- 
stitutional. United  States  v.  Boston  &  A.  R.  Co.,  15  Fed.  209. 
Reason  for  the  law  stated.  United  States  v.  L.  &  N.  R.  Co.,  18 
Fed.  480.  Accident  to  a  train  due  to  negligence  of  the  carrier 
not  excuse,  the  present  law  is  different  in  this  respect,  but  the 
decision  would  probably  apply  to  the  law  now.  Newport  N.  & 
M.  V.  R.  Co.  V.  United  States,  61  Fed.  488,  9  C.  C.  A.  579.  The 
same  rule  was  applied  United  States  v.  So.  Pac.  Co.,  157  Fed. 
459 ;  followed  holding  that  proof  need  only  be  by  a  preponder- 
ance of  the  evidence,  same  style  case,  162  Fed.  412.  Opposite 
rule  adopted.  United  States  v.  Louisville  &  N.  R.  Co.,  157  Fed. 
979.  The  rule  that  action  civil  affirmed.  Montana  C.  Ry.  Co. 
V.  United  States,  164  Fed.  400,  C.  C.  A.  .  Under  the 
old  law  a  receiver  was  not  liable,  he  is  expressly  named  in  the 
present  law.  United  States  v.  Harris,  85  Fed.  533.  Affirmed, 
same  style  case.  177  U.  S.  305,  44  L.  Ed.  780,  20  Sup.  Ct.  609. 
A  complaint  for  penalties  must  charge  that  the  neglect  was  wil- 
ful, though  need  not  negative  exceptions.  Action  civil  not  crim- 
inal. United  States  v.  Oregon  Short  L.  R.  Co.,  160  Fed.  526. 
"Knowingly  and  wilfully"  defined.  Terminal  railroad  wdthin 
act.  United  States  v.  Sioux  City  Stock  Yards  Co.,  162  Fed. 
556.  Affirmed  without  discussing  questions  involved,  same 
style  case,  167  Fed.  126.  Act  constitutional.  United 
States  V.  Oregon  R.  &  Nav.  Co.,  163  Fed.  640.  Objections  to 
allegation  must  be  taken  before  verdict;  action  civil;  wilful  does 
not  mean  an  evil  intent  but  a  violation  purposely.  New  York 
C.  &  H.  R.  R.  Co.  V.  United  States,  165  Fed.  833,  C.  C.  A. 
"Knowingly   and   wilfully"   defined.     United   States   v. 


§  591.]  TO  Prevent  Cruelty  to  Animals.  503 

Union  Pacific  R.  Co.,  169  Fed.  65,        C.  C.  A.         ;  St.  Louis  & 
S.  F.  Ry.  Co.  V.  United  States,  169  Fed.  69,        C.  C.  A. 
Wisconsin  Cent.  Ry.  Co.  v.  United  States,  169  Fed.  76,         C. 
C.  A. 

§  591.  Feeding  shall  be  at  expense  of  owner,  lien  given  for 
feed. — That  animals  so  unloaded  shall  be  properly  fed  and 
watered  during  such  rest  either  by  the  owner  or  person  having 
the  custody  thereof,  or  in  case  of  his  default  in  so  doing,  then  by 
the  railroad,  express  company,  car  company,  common  carrier 
other  than  by  water,  or  the  receiver,  trustee,  or  lessee  of  any 
of  them,  or  by  the  owners  or  masters  of  boats  or  vessels  trans- 
porting the  same,  at  the  reasonable  expense  of  the  owner  or  per- 
son in  custody  thereof,  and  such  railroad,  express  company,  car 
company,  common  carrier  other  than  by  water,  receiver,  trustee, 
or  lessee  of  any  of  them,  owners  or  masters,  shall  in  such  case 
have  a  lien  upon  such  animals  for  food,  care  and  custody  fur- 
nished, collectible  at  their  destination  in  the  same  manner  as 
the  transportation  charges  are  collected,  and  shall  not  be  lia- 
ble for  any  detention  of  such  animals,  when  such  detention  is  of 
reasonable  duration,  to  enable  compliance  with  section  one  of 
this  act ;  but  nothing  in  this  section  shall  be  construed  to  pre- 
vent the  OA\'ner  or  shipper  of  animals  from  furnishing  food 
therefor,  if  he  so  desires. 

Section  two  of  the  act. 

§  592.  Penalty. — That  any  railroad,  express  company,  car 
company,  common  carrier  other  than  by  water,  or  the  receiver, 
trustee,  or  lessee  of  any  of  them,  or  the  master  or  owTier  of  any 
steam,  sailing,  or  other  vessel  who  knowing  and  willfully  fails 
to  comply  with  the  provisions  of  the  two  preceding  sections  shall 
for  every  such  failure  be  liable  for  and  forfeit  and  pay  a  pen- 
alty of  not  less  than  one  hundred  nor  more  than  five  hundred 
dollars :  Provided,  That  when  animals  are  carried  in  cars,  boats, 
or  other  vessels  in  Avhich  they  can  and  do  have  proper  food, 
water,  space,  and  opportunity  to  rest  the  provisions  in  regard  to 
their  being  unloaded  shall  not  apply. 

Section  three  of  the  act. 

A  penalty  can  not  be  assessed  for  each  animal.  United  States 
V.  Boston  &  A.  R.  Co.,  15  Fed.  209.  The  penalty  should  be 
assessed  on  each  train  load.  United  States  v.  St.  Louis  &  S.  F. 
R.  Co.,  107  Fed.  870.  Tbo  shipper  may  recover  his  damages  un- 
affected by  the  act.    Southern  Pac.  Co.  v.  Arnett,  126  Fed.  75, 


504  28-HouR  Law  [§593. 

61  C.  C.  A.  131.  AVliere  there  are  several  shipments  in  the 
same  train,  each  shipment  constitutes  a  separate  case  upon  which 
for  a  violation  of  the  act  the  penalty  may  be  recovered.  United 
States  V.  Bal.  &  0.  S.  W.  R.  Co.,  159  Fed.  33,  86  C.  C.  A.  223 ; 
United  States  v.  New  York  C.  &  H.  R.  R.  Co.,  168  Fed.  699, 
C.  C.  A.  .  See  to  same  effect,  United  States  v.  Atchison,  T. 
&  S.  F.  Ry.  Co.,  166  Fed.  160.  Must  show  that  carrier  "know- 
ingly and  wilfully"  confined  the  animals  longer  than  twenty- 
eight  hours,  the  government  need  not  negative  exceptions,  and 
confinement  in  hands  of  connecting  carrier  is  counted.  United 
States  v.  Oregon  S.  L.  R.  Co.,  160  Fed.  526.  Action  for  penalty 
a  civil  suit,  §  590  supra. 

§  593.  Meat  inspection  act. — The  meat  inspection  act  of 
March  4,  1907,  chapter  2907,  34  Stat.  L.  1260,  contains  provi- 
sions for  the  inspection  of  meats  and  animals  that  enter  into  in- 
terstate commerce.  The  provisions  of  this  act  are  not  generally 
germane  to  the  subject  of  this  book.  One  provision,  however, 
does  apply  and  it  is  here  inserted. 

That  on  and  after  October  first,  nineteen  hundred  and  six, 
no  person,  firm,  or  corporation  shall  transport  or  offer  for  trans- 
portation, and  no  carrier  of  interstate  or  foreign  commerce  shall 
transport  or  receive  for  transportation  from  one  state  or  terri- 
tory or  the  District  of  Columbia  to  any  other  state  or  territory 
or  the  District  of  Columbia,  or  to  any  place  under  the  jurisdic- 
tion of  the  United  States,  or  to  any  foreign  country,  any  car- 
casses or  parts  thereof,  meat,  or  meat  food  products  thereof 
which  have  not  been  inspected,  examined,  and  marked  as  "In- 
spected and  passed,"  in  accordance  with  the  terms  of  this  act 
and  with  the  rules  and  regulations  prescribed  by  the  Secretary 
of  Agriculture :  Provided,  That  all  meat  and  meat  food  pro- 
ducts on  hand  on  October  first,  nineteen  hundred  and  six,  at 
establishments  where  inspection  has  not  been  maintained,  or 
which  have  been  inspected  under  existing  law,  shall  be  examined 
and  labeled  under  such  rules  and  regulations  as  the  Secretary 
of  Agriculture  shall  prescribe,  and  then  shall  be  allowed  to  be 
sold  in  interstate  or  foreign  commerce. 
Eighth  paragraph  of  above  act. 


CHAPTER  XI. 

TEUSTS  AND  OTHER  COMBINATIONS  IN  RESTRAINT 

OP  TRADE. 

Act  July  2,  1890,  Chapter  647,  26  Stat.  L.  210,  U.  S.  Compiled  Stat. 
1901,  p.  3200,  7  Fed.  Stat.  Ann,  336. 

§  600.     Contracts,  combinations  and  conspiracies  in  restraint  of  interstate 
commerce  illegal. 

601.  Monopolies   and   conspiracies   and   combinations   to   monopolize   in- 

terstate trade  illegal. 

602.  Prohibition   applies    to    territories    and   between    states    and    terri- 

tories. 

603.  Courts  given  jurisdiction  to  enjoin  violation  of  act. 

604.  Practice  with  reference  to  parties  and  service  of  subpoena  thereon. 

605.  Property  owned  under  a  contract  violating  this  act  being  in  course 

of  interstate  transportation  may  be  seized  and  forfeited. 

606.  Measure  of  damages  in  favor  of  person  injured. 

607.  Person  includes  corporation  and  association. 

608.  Act  of  August   28,  1894,   so  far  as  it  relates  to  trusts  and  com- 

binations in  restraint  of  trade. 

§  600.  Contracts,  combinations  and  conspiracies  in  restraint 
of  interstate  commerce  illegal. — Every  contract,  combination  in 
the  form  of  trust  or  otherwise,  or  conspiracy  in  restraint  of 
trade  or  commerce  among  the  several  states,  or  with  foreign 
nations,  is  hereby  declared  to  be  illegal.  Every  person  who  shall 
make  any  such  contract  or  engage  in  any  such  combination  or 
conspiracy,  shall  be  deemed  guilty  of  a  misdemeanor,  and,  on 
conviction  thereof,  shall  be  punished  by  fine  not  exceeding  five 
thousand  dollars,  or  by  imprisonment  not  exceeding  one  year, 
or  by  both  said  punishments,  in  the  discretion  of  the  court. 

Section  one  of  the  act  of  July  2,  ]890,  known  as  the  Sherman 
Anti-Trust  Act. 

Agreement  between  carriers  to  fix  and  maintain  rates  con- 
demned. Freight  Bureau  of  Cincinnati  v.  Cincinnati,  N.  0.  & 
T.  P.  Ry.  Co.,  6  I.  C.  C.  R.  ]95,  4  I.  C.  R.  592,  618.  Commis- 
sion has  no  authority  to  execute  anti-trust  law.  Sprigg  v.  Bal- 
timore &  0.  R.  Co.,  8  I.  C.  C.  R.  443.  A  noncoinpotitive  rate  de- 
prives it  of  its  value  as  a  standard.    Mayor  of  AVichita  v.  A.  T. 

505 


506  Trust  and  Other  Combinations  [§  600. 

&  S.  F.  Ry.  Co.,  9  I.  C.  C.  R.  534,  552,  Rates  advanced  by  con- 
cert of  action  "must  be  presumed  to  be  higher  than  rates  which 
unrestrained  competition  would  produce."  Central  Yellow  Pine 
Asso.  V.  111.  Cent.  R.  Co.,  10  I.  C.  C.  R.  505,  540,  541,  542.  Order 
of  commission  enforced.  111.  Cent.  R.  Co.  v.  Int.  Com.  Com.,  206 
U.  S.  441,  51  L.  Ed.  1128,  27  Sup.  Ct.  700;  Tift  v.  Southern 
Ry.  Co.,  10  I.  C.  C.  R.  548,  579.  Order  enforced.  138  Fed".  753 ; 
So.  Ry.  Co.  V.  Tift,  148  Fed.  1021,  206  U.  S.  428,  51  L.  Ed. 
1124,  27  Sup.  Ct.  709.  Where  "rates  have  been  long  in  effect, 
and  where  the  advance  has  been  made  by  concerted  action,"  the 
justification  should  be  clear.  Re  Class  and  Commodity  Rates 
from  St.  Louis  to  Texas  Common  Points.  11  I.  C.  C.  R.  238, 
268,  269,  270.  Disappearance  of  competition  given  as  one  rea- 
son for  holding  an  advance  illegal.  Cattle  Raisers'  Asso.  v. 
]Mo.,  Kan.  &  Tex.  Ry.  Co.,  11  I.  C.  C.  R.  296.  A  rate  the  result 
of  an  agreement  is  robbed  of  the  presumption  of  reasonableness, 
which  it  might  otherwise  possess.  China  and  Japan  Trading 
Co.  V.  Ga.  R.  Co.,  12  I.  C.  C.  R.  236,  241.  But  if  the  rate  is 
reasonable  although  illegally  established,  the  commission  will  so 
hold.  Id.  241.  Warren  Mfg.  Co.  v.  So.  Ry.  Co.,  12  I.  C.  C.  R. 
381.  Evidence  of  a  violation  of  the  anti-trust  act  pertinent  and 
such  evidence  will  be  given  due  weight  though  it  is  not  conclu- 
sive. Enterprise  Mfg.  Co.  v.  Ga.  R.  Co.,  12  I.  C.  C.  R.  451,  456. 
Board  of  Bristol,  Tenn.,  v.  Virginia  &  S.  W.  Ry.  Co.,  15  I.  C. 
C.  R.  453,  454.  Equity  will  not  aid  a  plaintiff  to  effect  a  com- 
bination in  restraint  of  trade.  Am.  Biscuit  &  Mfg.  Co.  v.  Klotz, 
44  Fed.  721,  1  Fed.  Anti-Trust  Dec.  2.  A  combination  between 
coal  dealers  in  different  states  to  control  prices  prohibited. 
United  States  v.  Jellico  Moimtain  Coal  &  Coke  Co.,  46  Fed.  432, 
12  L.  R.  A.  753,  1  Fed.  Anti-Trust  Dec.  9.  Control  of  railroads 
by  stock  o\Maership  so  as  to  prevent  competition  within  the 
spirit,  if  not  letter,  of  law.  Clarke  v.  Cent.  R.  &  Banking  Co., 
50  Fed.  338,  1  Fed.  Anti-Trust  Dec.  17.  An  owner  of  a  patent- 
able invention,  though  a  party  to  a  combination  to  limit  its  man- 
ufacture, may  maintain  suit  for  its  infringement.  Strait  v. 
National  Harrow  Co.,  51  Fed.  819.  1  Fed.  Anti-Trust  Dec.  52. 
Act  does  not  include  common  carriers ;  an  agreement  to  maintain 
reasonable  rates  not  violative  of  either  section  one  or  section  two. 
United  States  v.  Trans-Missouri  Freight  Asso.,  53  Fed.  440,  1 
Fed.  Anti-Trust  Dec.  80.  Affirmed.  58  Fed.  58,  7  C.  C.  A.  15, 
24  L.  R.  A.  73,  1  Fed.  Anti-Trust  Dec.  186.    Reversed.     166  U. 


§  600.]  IN  Restraint  of  Trade.  507 

S.  290,  41  L.  Ed.  1007,  17  Sup.  Ct.  510,  1  Fed.  Anti-Trust  Dec. 
648.  Combinations  of  laborers  illegal.  United  States  v.  Work- 
ingman's  Amalg.  Council,  54  Fed.  994,  26  L.  E.  A.  158,  1  Fed. 
Anti-Trust  Dec.  110 ;  AVaterhouse  v.  Comer,  55  Fed.  149,  1  Fed. 
Anti-Trust  Dec.  119.  All  contracts  and  combinations  in  re- 
straint of  interstate  trade  illegal,  but  buying  up  by  one  corpora- 
tion of  all  competing  concerns  not  a  violation  of  the  statute. 
United  States  v.  Knight,  60  Fed.  306,  1  Fed.  Anti-Trust  Dec. 
250.  Affirmed,  same  style  case,  60  Fed.  934,  9  C.  C.  A.  297, 
1  Fed.  Anti-Trust  Dec.  258,  24  L.  R.  A.  428,  156  U.  S.  1,  11,  39 
L.  Ed.  325,  15  Sup.  Ct.  249,  1  Fed.  Anti-Trust  Dec.  379,  387, 
holding  that  a  monopoly  in  manufacture  is  not  prohibited  by  the 
act.  A  combination  to  compel  carriers  engaged  in  interstate 
transportation  to  accede  to  certain  demands  illegal,  whether  such 
demands  be  reasonable  or  unreasonable.  United  States  v.  Elliott, 
62  Fed.  801,  64  Fed.  27,  1  Fed.  Anti-Trust  Dec.  262,  311.  Labor 
boycott  violates  act.  Thomas  v.  Cincinnati,  N.  0.  &  T.  P.  Ry. 
Co.,  62  Fed.  803,  1  Fed.  Anti-Trust  Dec.  266.  Violence  and 
intimidation  for  the  purpose  of  preventing  the  moving  of  trains 
engaged  in  interstate  commerce  violates  the  act.  Re  Grand  Jury, 
62  Fed.  840,  1  Fed.  Anti-Trust  Dec.  301.  Mentioned  but  not 
decided.  Arthur  v.  Oakes,  63  Fed.  310,  329,  11  C.  C.  A.  209, 
25  L.  R.  A.  414,  1  Fed.  Anti-Trust  Dec.  310.  The  word  "con- 
spiracy" broad  enough  to  cover  conspiracies  of  labor  in  restraint 
of  trade  or  commerce.  United  States  v.  Debs,  64  Fed.  724,  1 
Fed.  Anti-Trust  Dec.  322.  Writ  of  habeas  corpus  denied.  Re 
Debs,  158  U.  S.  564,  39  L.  Ed.  1092,  15  Sup.  Ct.  900,  1  Fed. 
Anti-Trust  Dec.  565.  A  corporation  organized  to  secure  assign- 
ments of  all  patents  relating  to  a  particular  apparatus  and  to 
fix  and  regulate  the  prices  thereof  is  illegal.  National  Harrow 
Co.  V.  Quick,  67  Fed.  130,  1  Fed.  Anti-Trust  Dec.  443,  608.  Af- 
firmed, same  style  case.  74  Fed.  236,  20  C.  C.  A.  410.  National 
Harrow  Co.  v.  Hench,  76  Fed.  667,  1  Fed.  Anti-Trust  Dec.  610. 
Affirmed,  same  style  case,  83  Fed.  36,  27  C.  C.  A.  349,  39  L.  R. 
A.  299,  1  Fed.  Anti-Trust  Dec.  742.  See  also  same  style  case,  84 
Fed.  226,  1  Fed.  Anti-Trust  Dec.  746.  '*A  conspiracy  is  a  com- 
bination of  two  or  more  persons,  by  concerted  action,  to  accom- 
plish a  criminal  or  unlawful  purpose,  or  some  purpose  not  in 
itself  unlawful  or  criminal,  bj^  criminal  or  unlawful  means,  the 
common  design  being  the  essence  of  the  charge."  This  case 
which  was  a  charge  to  a  jury  defines  trade  and  commerce  and 


508  Trust  and  Other  Combinations  [§  600. 

holds  ''that  Pullman  cars  in  use  upon  the  roads  are  instrumen- 
talities of  commerce."  United  States  v.  Cassidy,  67  Fed.  698, 
702,  1  Fed.  Anti-Trust  Dec.  449,  455,  citing  Pettibone  v.  United 
States,  148  U.  S.  197,  203,  37  L.  Ed.  419,  13  Sup.  Ct.  542.  Not 
applicable  to  a  state  which  by  its  laws  assumes  a  monopoly  of 
the  liquor  traffic.  Lowenstein  v.  Evans,  69  Fed.  908,  1  Fed. 
Anti-Trust  Dec.  598.  An  interstate  carrier  may  legally  make 
an  exclusive  arrangement  with  another  carrier  for  through  trans- 
portation. Prescott  &  A.  C.  E.  Co.  v.  Atchison,  T.  &  S.  F.  R. 
Co.,  73  Fed.  438,  1  Fed.  Anti-Trust  Dec.  604.  One  having  re- 
ceived the  services  of  a  tug  can  not  escape  payment  therefor, 
although  the  tug  owners  are  members  of  an  association  illegal 
under  the  act.  The  Charles  E.  Wiswall,  74  Fed.  802,  1  Fed. 
Anti-Trust  Dec.  608.  Affirmed,  same  style  case,  86  Fed.  671, 
30  C.  C.  A.  339,  1  Fed.  Anti-Trust  Dec.  850.  The  statute  covers, 
and  was  intended  to  cover,  common  carriers  by  railroad,  and  pro- 
hibits all  agreements  and  combinations  in  restraint  of  trade  or 
commerce,  regardless  of  the  question  whether  or  not  such  agree- 
ments were  reasonable.  United  States  v.  Trans-J\Iissouri  Freight 
Asso.,  166  U.  S.  290,  327,  335,  41  L.  Ed.  1007,  17  Sup.  Ct.  540, 
1  Fed.  Anti-Trust  Dec.  648.  All  restraints  prohibited,  whether 
reasonable  or  unreasonable,  and  whether  or  not  the  law  is  vio- 
lated by  the  practical  workings  and  results  of  the  association  al- 
leged to  be  an  illegal  combination.  United  States  v.  Hopkins, 
82  Fed.  529,  1  Fed.  Anti-Trust  Dec.  725,  748.  Reversed  because 
the  business  was  not  interstate  commerce.  Hopkins  v.  United 
States,  171  U.  S.  578,  43  L.  Ed.  290,  19  Sup.  Ct.  40,  1  Fed.  Anti- 
Trust  Dec.  941.  Followed,  Anderson  v.  United  States,  171  U. 
S.  604,  43  L.  Ed.  300,  19  Sup.  Ct.  50,  1  Fed.  Anti-Trust  Dec. 
967.  Any  restraint  illegal.  United  States  v.  Coal  Dealers' 
Asso.,  85  Fed.  252,  1  Fed.  Anti-Trust  Dec.  749.  A  contract  op- 
erating as  a  restraint  in  soliciting  orders  for  and  selling  goods 
in  one  state  to  be  delivered  in  another  is  within  the  act.  Thb 
doctrine  of  the  common  law  as  well  as  the  effect  of  the  statute 
discussed.  United  States  v.  Addyston  Pipe  &  Steel  Co.,  85  Fed. 
271,  29  C.  C.  A.  141,  46  L.  R.  A.  122,  1  Fed.  Anti-Trust  Dec. 
772.  Affirmed.  Addyston  Pipe  &  Steel  Co.  v.  United  States, 
175  U.  S.  211,  44  L.  Ed.  136,  20  Sup.  Ct.  96,  1  Fed.  Anti-Trust 
Dec.  1009,  but  decree  modified  so  as  not  to  affect  commerce 
wholly  within  a  state.  An  independent  dealer  who,  without 
knowledge  of  the  intention  of  the  buyer,  sells  all  his  product 


§  600.]  •  IN  Restraint  of  Trade.  509 

to  one  who  makes  the  purchase  as  part  of  a  general  scheme  of 
monopoly  does  not  violate  the  law.  Carter-Crume  Co.  v.  Peur- 
rung,  86  Fed.  439,  30  C.  C.  A.  174,  1  Fed.  Anti-Trust  Dec.  844. 
Allegations  sufficient  to  bring  case  within  the  law.  Lowry  v. 
Tile,  Mantel  &  Grate  Asso.,  98  Fed.  817,  1  Fed.  Anti-Trust  Dec. 
995.  Affirmed.  Montague  v.  Lowry,  115  Fed.  27,  52  C.  C.  A. 
621,  2  Fed.  Anti-Trust  Dec.  112,  193  U.  S.  38,  48  L.  Ed.  608, 
24  Sup.  Ct.  307,  2  Fed.  Anti-Trust  Dec.  327.  A  note  payable  to 
a  corporation  for  goods  can  not  be  avoided  because  such  corpora- 
tion is  a  trust  organized  and  operating  in  violation  of  the  act. 
Union  Sewer-Pipe  Co.  v.  Connelly,  99  Fed.  354,  2  Fed.  Anti- 
Trust  Dec.  1.  Affirmed  on  the  point  annotated  and  also  holding 
that  the  Illinois  Anti-Trust  Act  was  void  because  it  exempted 
agricultural  products  and  live  stock  from  its  provisions.  Con- 
nelly V.  Union  Sewer-Pipe  Co.,  184  U.  S.  540,  46  L.  Ed.  679, 
22  Sup.  Ct.  431,  2  Fed.  Anti-Trust  Dec.  118.  An  infringer  of 
a  patent  can  not  defend  on  the  ground  that  the  owner  thereof  is 
organized  in  violation  of  the  act  and  procured  the  patent  in  pur- 
suance of  such  illegal  organization.  National  Folding  Box  & 
Paper  Co.  v.  Robertson,  99  Fed.  985,  2  Fed.  Anti-Trust  Dec. 
4;  Otis  Elevator  Co.  v.  Geiger,  307  Fed.  131,  2  Fed.  Anti-Trust 
Dec.  66;  General  Elec.  Co.  v.  Wise,  119  Fed.  922,  2  Fed.  Anti- 
Trust  Dec.  205;  United  States  Consolidated  Seeded  Raisin  Co. 
V.  Griffin,  126  Fed.  364,  61  C.  C.  A.  334,  2  Fed.  Anti-Trust  Dec. 
288.  If  trade  is  restrained  by  a  contract  or  combination,  it  is 
an  illegal  act,  even  though  the  public  may  be  benefitted  thereby. 
United  States  v.  Chesapeake  &  0.  Fuel  Co.,  105  Fed.  93,  2  Fed. 
Anti-Trust  Dec.  34.  Affirmed.  Chesapeake  &  0.  Fuel  Co.  v. 
United  States,  115  Fed.  610,  53  C.  C.  A.  256,  2  Fed.  Anti-Trusi 
Dec.  151.  A  combination  of  manufacturers  and  dealers,  each 
member  of  which  paid  certain  entrance  fees  and  dues  and  the 
constitution  of  which  prohibited  its  members  from  buying  from 
other  than  members,  illegal.  Lowry  v.  Tile,  Mantel  &  Grate 
Asso.,  106  Fed.  38,  2  Fed.  Anti-Trust  Dec.  53.  Affirmed.  Mon- 
tague V.  Lowry,  115  Fed.  27,  52  C.  C.  A.  621,  2  Fed.  Anti-Trust 
Dec.  112,  193  U.  S.  38,  48  L.  Ed.  608,  24  Sup.  Ct.  307,  2  Fed. 
Anti-Trust  Dec.  327.  A  pooling  combination  of  carriers  is  il- 
legal, and  a  carrier  party  thereto  can  not  maintain  a  suit  for 
injunction  against  a  ticket  broker  who  sells  non-transferable  tick- 
ets issued  as  part  of  the  pooling  agreement.  Delaware,  L.  &  W. 
R.  Co.  V.  Frank,  110  Fed.  689,  2  Fed.  Anti-Trust  Dec.  81.     Im- 


510  Trust  and  Other  C^ombinations  [§600. 

niimity  Act  of  Feb.  11,  1893,  docs  not  apply  to  this  act.  Foot 
V.  Buchanan,  113  Fed.  156,  2  Fed.  Anti-Trust  Dec.  103.  A  pri- 
vate individual  may  successfully  defend  an  action  brought 
against  him  on  a  contract  in  violation  of  this  act.  A  patentee 
may  legally  put  restraint  on  a  licensee  of  the  patent,  although 
such  restraints  are  violative  of  commerce  in  the  patented  article. 
Bement  v.  National  Harrow  Co.,  186  U.  S.  70,  46  L.  Ed.  1058, 
22  Sup.  Ct.  747,  2  Fed.  Anti-Trust  Dec.  169.  But  the  contract 
extending  beyond  the  protection  of  the  patent  is  illegal.  In- 
diana Mfg.  Co.  V.  J.  I.  Case  Threshing  Mch.  Co.,  148  Fed.  21. 
Reversed,  same  style  case,  154  Fed.  365,  83  C.  C.  A.  343.  A 
paving  contract  limiting  the  material  used  to  that  manufactured 
by  only  one  company  is  not  illegal.  Field  v.  Barber  Asphalt 
Paving  Co.,  117  Fed.  925,  2  Fed.  Anti-Trust  Dec.  192.  Affirmed, 
same  style  case,  194  U.  S.  618,  48  L.  Ed.  1142,  24  Sup.  Ct.  784, 
2  Fed.  Anti-Trust  Dec.  555.  The  statute  includes  all  combina- 
tions which  directly  and  substantially  restrict  interstate  com- 
merce, and  applies  to  interstate  carriers.  The  act  is  violated  by 
a  contract  by  which  a  majority  of  the  stock  of  each  of  two  com- 
peting roads  is  transferred  to  a  corporation  organized  to  vote 
such  stock,  the  voting  corporation  issuing  its  stock  to  the  holders 
of  the  stock  of  the  two  railroad  corporations.  United  States  v. 
Northern  Securities  Co.,  120  Fed.  721,  2  Fed.  Anti-Trust  Dec. 
215.  Affirmed,  reviewing  and  discussing  former  anti-trust  de- 
cisions of  the  court.  Northern  Securities  Co.  v.  United  States, 
193  U.  S.  197,  48  L.  Ed.  679,  24  Sup.  Ct.  436,  2  Fed.  Anti-Trusi 
Dec.  338.  A  board  of  trade  may  sell  its  quotations  to  a  telegraph 
company  with  the  limitation  that  they  shall  not  be  furnished  to 
a  bucket  shop.  Board  of  Trade  of  Chicago  v.  Christie  Grain 
&  Stock  Co.,  121  Fed.  608,  2  Fed.  Anti-Trust  Dec.  233.  Reversed 
on  other  grounds.  Christie  Grain  &  Stock  Co.  v.  Board  of  Trade 
of  Chicago,  125  Fed.  161,  61  C.  C.  A.  11.  Circuit  court  of  ap- 
peals reversed  and  circuit  court  affirmed  same  style  case.  Board 
of  Trade  of  Chicago  v.  Christie  Grain  &  Stock  Co.,  198  U.  S. 
236,  49  L.  Ed.  1031,  25  Sup.  Ct.  637,  2  Fed.  Anti-Trust  Dec. 
717.  A  combination  to  restrain  trade  illegal,  although  prices 
resulting  therefrom  reasonable.  United  States  v.  Swift  &  Co., 
122  Fed.  529,  2  Fed.  Anti-Trust  Dec.  237.  Affirmed.  Swift  & 
Co.  V.  United  States,  196  U.  S.  375,  49  L.  Ed.  518,  25  Sup.  Ct. 
276,  2  Fed.  Anti-Trust  Dec.  641,  holding  that  although  the 
separate  elements  of  a  combination  may  be  legal,  if  the  common 


§  600.]  IN  Eestraint  op  Trade.  511 

intent  is  to  monopolize  trade,  it  is  illegal.  The  IMinnesota  Anti- 
Trust  Act  not  violated  under  the  facts  pleaded.  IMinnesota 
V.  Northern  Securities  Co.,  123  Fed.  692,  2  Fed.  Anti-Trust  Dee. 
246.  Reversed  because  the  federal  court  had  no  jurisdiction  and 
remanded  to  the  state  court.  IMinnesota  v.  Northern  Securities 
Co.,  194  U..S.  48,  48  L.  Ed.  870,  24  Sup.  Ct.  598,  2  Fed.  Anti- 
Trust  Dec.  533.  A  combination  to  control  prices  in  a  local 
market  and  to  refuse  to  sell  to  consumers  who  buy  from  non- 
members,  some  of  whom  live  out- of  the  state,  is  not  within  act. 
Ellis  V.  Inman,  Poulsen  &  Co.,  124  Fed.  956,  2  Fed.  Anti-Trust 
Dec.  268.  Reversed,  holding  that  the  federal  law  applied.  Same 
style  ease,  131  Fed.  182,  65  C.  C.  A.  488,  2  Fed.  Anti-Trust  Dec. 
577.  Sale  of  good  will  limiting  the  right  of  the  vendor  to  go  into 
business  within  fifty  miles  of  the  place  of  sale  valid,  and  being 
within  a  state  not  violative  of  the  federal  act.  Robinson  v. 
Suburban  Brick  Co.,  127  Fed.  804,  62  C.  C.  A.  484,  2  Fed.  Anti- 
Trust  Dec.  312.  Booth  &  Co.  v.  Davis,  127  Fed.  875,  2  Fed. 
Anti-Trust  Dec.  318.  Affirmed.  Davis  v.  Booth,  131  Fed.  31, 
65  C.  C.  A.  269,  2  Fed.  Anti-Trust  Dec.  566.  Writ  of  certiorari 
denied  by  Supreme  Court.  195  U.  S.  636.  See  also  Camors- 
McConnell  Co.  v.  McConnell,  140  Fed.  412,  2  Fed.  Anti-Trust 
Dec.  817.  Affirmed.  IMcConnell  v.  Camors-IMcConnell  Co.,  140 
Fed.  987,  72  C.  C.  A.  681,  2  Fed.  Anti-Trust  Dec.  825.  Rehear- 
ing denied,  same  case,  152  Fed.  321,  81  C.  C.  A.  429;  American 
Brake  Beam  Co.  v.  Pimgs,  141  Fed.  923,  73  C.  C.  A.  157,  2 
Fed.  Anti-Trust  Dec.  826.  Combination  of  carriers  by  which  by 
concerted  action  rates  are  advanced  violates  act.  Tift  v.  Southern 
Ry.  Co.,  138  Fed.  Anti-Trust  Dec.  753,  2  Fed.  Anti-Trust  733. 
Affirmed.  So.  Ry.  Co.  v.  Tift,  148  Fed.  1021,  206  U.  S.  428,  51  L. 
Ed.  1124,  27  Sup.  Ct.  709.  After  a  copyrighted  book  has  been 
sold, although  with  a  statement  printed  therein  that  the  purchaser 
could  not  sell  except  at  a  stated  price,  the  purchaser  can  sell 
at  any  price  he  sees  fit.  Book  trust  declared  illegal.  Bobbs- 
IMerrill  Co.  v.  Straus,  139  Fed.  155,  2  Fed.  Anti-Trust  Dec.  755. 
Affirmed,  same  style  case,  147  Fed.  15,  77  C.  C.  A.  607,  15  L. 
R.  A.  766,  210  U.  S.  339,  52  L.  Ed.  1086,  28  Sup.  Ct.  722.  Tno 
immunity  act,  act  Feb.  19,  1903,  applies  to  the  anti-trust  act. 
Re  Hale,  139  Fed.  496,  2  Fed.  Anti-Trust  Dec.  804.  Affirmed. 
Hale  V.  Henkel,  201  U.  S.  43,  50  L.  Ed.  652,  26  Su]).  Ct.  370, 
2  Fed.  Anti-Trust  Dee.  874;  McAlister  v.  ITenkcl,  201  U.  S.  90, 
50  L.  Ed.  671,  26  Sup.  Ct.  385,  2  Fed.  Anti-Trust  Dec.  919. 


512  Trust  and  Other  Combinations  [§  600. 

Followed,  Nelson  v.  United  States,  201  U.  S.  92,  50  L.  Ed.  673, 
26  Sup.  Ct.  358,  2  Fed.  Anti-Trust  Dec.  920.  A  patentee  may 
grant  licenses  to  sell  the  patented  article  only  on  condition  of 
selling  at  prices  fixed  by  the  patentee,  but  under  the  facts  of  this 
case  license  contract  void  as  violative  of  anti-trust  act.  Rubber 
Tire  Wheel  Co.  v.  Milwaukee  Rubber  Co.,  142  Fed.  531,  2  Fed. 
Anti-Trust  Dec.  855.  Reversed,  same  style  case,  154  Fed.  358, 
83  C.  C.  A.  336.  Good  will  contract  valid.  A  purchaser  of  a 
river  boat  can  not  refuse  to  pay  therefor  because  in  the  contract 
of  purchase  he  agreed  to  maintain  existing  rates.  Cincinnati, 
P.  B.  S.  &  P.  P.  Co.  V.  Bay.  200  U.  S.  179,  50  L.  Ed.  428,  26 
Sup.  Ct.  208,  2  Fed.  Anti-Trust  Dec.  867.  An  order  directing 
a  witness  to  answer  questions  relating  to  violations  of  the  act 
is  interlocutory  and  not  appealable.  Alexander  v.  United  States, 
201  U.  S.  117,  50  L.  Ed.  686,  26  Sup.  Ct.  356.  2  Fed.  Anti- 
Trust  Dec.  945.  Immunity  does  not  apply  to  corporation  whose 
officers  may  testify,  it  does  apply  to  individuals  who  testify  at 
hearings  before  the  Commissioner  of  Corporations.  United 
States  V.  Armour,  142  Fed.  808,  2  Fed.  Anti-Trust  Dec.  951. 
Act  does  not  make  void  a  collateral  contract  for  the  manufacture 
and  sale  of  goods.  Hadley,  Dean  Plate  Glass  Co.  v.  Highland 
Glass  Co.,  143  Fed.  242,  74  C.  C.  A.  462,  2  Fed.  Anti-Trust  Dec. 
994.  Followed,  Chicago  Wall  Paper  Mills  v.  General  Paper  Co., 
147  Fed.  491,  78  C.  C.  A.  607,  2  Fed.  Anti-Trust  Dec.  1027. 
It  is  not  unlawful  for  a  manufacturer  of  a  proprietary  medicine 
to  contract  with  the  dealers  who  purchase  such  medicine  from 
him,  that  they  shall  sell  at  a  fixed  price.  Hartman  v.  John  D. 
Park  &  Sons,  145  Fed.  358,  2  Fed.  Anti-Trust  Dec.  999.  Re- 
versed, holding  contract  unenforceable.  John  D.  Park  &  Sons 
V.  Hartman,  153  Fed.  24,  82  C.  C.  A.  158,  12  L.  R.  A.  (N.  S.) 
1135.  Circuit  Court  followed  Dr.  Miles  jMeclicine  Co.  v.  Ja^-nes 
Drug  Co.,  149  Fed.  838.  Circuit  court  of  appeals  followed. 
Dr.  :\Iiles  JMedical  Co.  v.  John  D.  Park  &  Sons  Co.,  164  Fed. 
803,  C.  C.  A.  .  Writ  of  error  granted  by  Supreme  Court. 
A  carrier  may  enter  into  an  exclusive  contract  with  one  to  build 
up,  develop  and  conduct  a  particular  traffic  business  along  its 
line.  Delaware.  L.  &  W.  R.  Co.  v.  Kutter,  147  Fed.  51,  77  0. 
C.  A.  315.  2  Fed.  Anti-Trust  Dee.  1021.  Petition  for  writ  of 
certiorari  denied,  203  U.  S.  588,  51  L.  Ed.  330.  An  agreement 
between  publishers  of  copyrighted  books,  who  control  ninety  per 
cent,  of  the  book  business,  not  to  sell  to  any  one  who  cuts  prices, 


§  600.]  IN  Restraint  op  Trade.  513 

or  who  sells  to  one  who  cuts  prices,  is  illegal.  Mines  v.  Scribner, 
147  Fed.  927,  2  Fed.  Anti-Trust  Dec.  1035.  See  case  of  Bobbs- 
Merrill  Co.  v.  Straus,  supra.  The  attempt  of  a  labor  union  to 
compel,  by  a  boycott,  a  manufacturer  to  unionize  his  factory  not 
within  act.  Loewe  v.  Lawlor,  148  Fed.  924.  See  same  case,  130 
Fed.  633,  2  Fed.  Anti-Trust  Dec.  563,  142  Fed.  216,  2  Fed. 
Anti-Trust  Dec.  854.  Reversed,  holding  that  such  acts  con- 
stituted a  violation  of  the  act.  Loewe  v.  Lawlor,  208  U.  S.  274, 
52  L.  Ed.  488,  28  Sup.  Ct.  301.  Purchase  money  of  goods  can 
not  be  recovered  when  the  purchase  was  made  as  part  of  a  com- 
bination in  restraint  of  trade.  Continental  "Wall  Paper  Co.  v. 
Lewis  Voight  &  Sons  Co.,  148  Fed.  939,  78  C.  C.  A.  567.  Affirm- 
ed, same  style  case,  212  U.  S.  227,  53  L.  Ed.  ,  29  Sup.  Ct.  280. 
Act  not  affect  a  contract  by  which  foreign  ship  owners  endeavor 
to  prevent  dealing  with  their  competitors.  Thomson  v.  Union 
Castle  Mail  Steamship  Co.,  149  Fed.  933.  Reversed,  holding  that 
when  the  combination  was  put  in  effect  in  the  United  States  it 
violated  its  laws.    Thomson  v.  Union  Castle  Mail  Steamship  Co., 

166  Fed.  251,  C.  C.  A.  .  Trusts  defined,  quoting  Coke's 
definition.  Re  Charge  to  Grand  Jury,  151  Fed.  834.  Though  a 
rate  is  established  in  violation  of  Anti-Trust  Act,  application 
must  first  be  made  to  the  Interstate  Commerce  Commission  to 
declare  rate  illegal.  American  Union  Coal  Co.  v.  Penn.  R.  Co., 
159  Fed.  278 ;  Meeker  v.  Lehigh  V.  R.  Co.,  162  Fed.  354.  Mere 
agreement  not  effective  does  not  violate  law.  The  facts  in  the 
case  show  a  violation.  United  States  Tobacco  Co.  v.  American 
Tobacco  Co.,  163  Fed.  701 ;  Weisert  Bros.  Tobacco  Co.  v.  Amer- 
ican Tobacco  Co.,  Larus  &  Bro.  Co.  v.  same,  163  Fed.  712.  Tht 
American  Tobacco  Co.  declared  a  trust.  United  States  v.  Amer- 
ican Tobacco  Co.,  164  Fed.  700;  People's  Tobacco  Co.  v.  Ameri- 
can Tobacco  Co.,  HO  Fed.  396,  C.  C.  A.  .A  patentee  may 
legally  limit  the  licensee  in  the  manner  of  selling.  Goshen  Rub- 
ber Works  V.  Single  Tube  A.  &  B.  Tire  Co.,  166  Fed.  431,  C. 
C.  A.  ,  but  not  so  when  the  purpose  of  the  contract  is  to  en- 
hance prices  and  not  as  an  incident  to  the  sale  of  the  patent 
right.  Blount  :Mfg.  Co.  v.  Yale  &  Towne  Mfg.  Co.,  166  Fed. 
555.  Facts  not  constituting  a  violation.  Bigelow  v.  Calumet 
&  ITecla  ]\lining  Co.,  167  Fed.  704.     Affirmed,  same  style  case, 

167  Fed.  721,  C.  C.  A.  .  A  lease  of  a  plant  executed  in 
pursuance  of  a  plan  to  mf)Mopolize  the  cotton  compressing  busi- 
ness illegal.    Shawnee  Compress  Co.  v,  Anderson,  209  U.  S.  423, 


514  Trust  and  Other   Combinations  [§  601. 

52  L.  Ed.  865,  28  Sup.  Ct.  572.  No  judgment  will  be  rendered 
for  the  purchase  price  of  property  when  "such  a  judgment 
would,  in  effect,  aid  the  execution  of  agreements  which  consti- 
tuted" an  illegal  combination.  Four  judges  dissent.  Conti- 
nental Wall  Paper  Co.  v.  Voight  &  Sons  Co.,  212  U.  S.  227,  53 
L.  Ed.  29  Sup.  Ct.  280. 

§  601.  Monopolies  and  conspiracies  and  combinations  to  mon- 
opolize interstate  trade  illegal. — Every  person  who  shall  monop- 
olize, or  attempt  to  monopolize,  or  combine  or  conspire  with  any 
other  person  or  persons,  to  monopolize  any  part  of  the  trade  or 
commerce  among  the  several  states,  or  with  foreign  nations,  shall 
be  deemed  guilty  of  a  misdemeanor,  and,  on  conviction  thereof, 
shall  be  punished  by  fine  not  exceeding  five  thousand  dollars,  or 
by  imprisonment  not  exceeding  one  year,  or  by  both  said  punish- 
ments, in  the  discretion  of  the  court. 

Section  two  of  the  act  July  2,  1890,  kno\m  as  the  Sherman 
Anti-Trust  Law. 

What  an  indictment  for  violation  should  state.  United  States 
V.  Greenhut,  50  Fed.  469,  1  Fed.  Anti-Trust  Dec.  30.  Re  Corn- 
ing, 51  Fed.  205,  1  Fed.  Anti-Trust  Dec.  33;  Re  Terrell,  51 
Fed.  213,  1  Fed.  Anti-Trust  Dec.  46;  United  States  v.  Patter- 
son, 59  Fed.  280,  1  Fed.  Anti-Trust  Dec.  244.  Does  not  prevent 
a  state  corporation  from  acquiring  title,  control  and  disposition 
of  property  in  the  several  states.  Re  Greene,  52  Fed.  104,  1 
Fed.  Anti-Trust  Dec.  54.  An  agreement  among  a  number  of 
lumber  dealers  to  raise  the  price  fifty  cents  per  thousand,  not 
illegal  unless  it  includes  the  entire  traffic.  52  Fed.  646,  1  Fed. 
Anti-Trust  Dec.  77.  "Monopolize"  is  the  basis  of  the  statute 
and  merely  injuring  or  restraining  trade  not  prohibited.  United 
States  V.  Patterson,  55  Fed.  605,  640,  641,  1  Fed.  Anti-Trust 
Dec.  133,  176,  177.  A  purchaser  of  liquors  from  an  illegal  com- 
bination can  not  keep  the  goods  and  recover  the  price  paid,  even 
though  it  was  excessive.  Dennehy  v.  IMcNulta,  86  Fed.  825,  41 
L.  R.  A.  609,  30  C.  C.  A.  422,  1  Fed.  Anti-Trust  Dec.  855.  A 
contract  with  an  association  having  a  monopoly  of  the  commerce 
in  a  particular  commodity  by  which  it  agrees  to  pay  a  dividend 
to  a  company  on  condition  that  such  company  would  close  its 
factory  for  a  year  is  contrary  to  public  policy  and  unlawful. 
Cravens  v.  Carter-Crume  Co..  92  Fed.  479,  34  C.  C.  A.  479,  1 
Fed.  Anti-Trust  983.  IMere  attempts  to  monopolize  trade  not 
punishable,  combination  the  main  purpose  of  which  is  to  foster 


§  602.]  IN  Restraint  of  Trade.  515 

trade  and  which  only  indirectly  or  incidentally  restricts  competi- 
tion not  illegal.  Whitwell  v.  Continental  Tobacco  Co.,  125  Fed. 
454,  60  C.  C.  A.  290,  64  L.  R.  A.  689,  2  Fed.  Anti-Trust  Dec. 
271;  Phillips  V.  lola  Portland  Cement  Co.,  125  Fed.  593,  61  C. 
C.  A.  19,  2  Fed.  Anti-Trust  Dec.  284.  Petition  for  writ  of 
certiorari  denied.  192  U.  S.  606,  48  L.  Ed.  585,  24  Sup.  Ct. 
850.  A  demand  for  a  "closed  shop"  illegal.  Barnes  &  Co.  v. 
Berry,  156  Fed.  72.  ''Monopoly"  defined.  Burrows  v.  Interur- 
ban  Metropolitan  Co.,  156  Fed,  389.  An  agreement,  however, 
between  mine  operators  not  to  employ  members  of  a  certain 
union  held  not  to  be  illegal.  Goldfield  Consolidated  jMines  Co. 
V.  Goldfield  Mines  Union,  159  Fed.  500. 

§  602.  Prohibition  applies  to  territories  and  between  states 
and  territories. — Every  contract,  combination  in  form  of  trust 
or  otherwise,  or  conspiracy,  in  restraint  of  trade  or  commerce  in 
any  territory  of  the  United  States  or  of  the  District  of  Colum- 
bia, or  in  restraint  of  trade  or  commerce  between  any  such  ter- 
ritory and  another,  or  between  any  such  territory  or  territories 
and  any  state  or  states  or  the  District  of  Columbia,  or  with  for- 
eign nations,  or  between  the  District  of  Columbia  and  any  state 
or  states  or  foreign  nations,  is  hereby  declared  illegal.  Every 
person  who  shall  make  any  such  contract  or  engage  in  any  such 
combination  or  conspiracy  shall  be  deemed  guilty  of  a  misde- 
meanor, and,  on  conviction  thereof,  shall  be  pimished  by  fine  not 
exceeding  five  thousand  dollars,  or  by  imprisonment  not  exceed- 
ing one  year,  or  by  both  said  punishments,  in  the  discretion  of 
the  court. 

Section  three  of  the  act  July  2,  1890,  known  as  the  Sherman 
Anti-Trust  Act. 

Prosecution  begun  in  a  territorial  court  abates  upon  the  ad- 
mission of  the  territory  as  a  state.  Moore  v.  United  States,  85 
Fed.  465,  29  C.  C.  A.  269,  1  Fed.  Anti-Trust  Dec.  815. 

§  603.  Courts  given  jurisdiction  to  enjoin  violation  of  act. — 
The  several  circuit  courts  of  the  United  States  are  hereby  in- 
vested with  jurisdiction  to  prevent  and  restrain  violations  of  this 
act;  and  it  shall  be  the  duty  of  the  several  district  attorneys  of 
the  United  States,  in  their  respective  districts,  under  the  di- 
rection of  the  Attorney-General,  to  institute  proceedings  in 
equity  to  prevent  and  restrain  such  violations.  Such  proceed- 
ings may  be  by  way  of  petition  setting  forth  the  case  and  pray- 
ing that  such  violation  shall  be  enjoined  or  otherwise  prohibited. 


516  Trust  and  Other  Combinations  [§  603. 

When  the  parties  complained  of  shall  have  been  duly  notified 
of  such  petition  the  court  shall  proceed,  as  soon  as  may  be,  to 
the  hearing  and  determination  of  the  case;  and  pending  such 
petition  and  before  final  decree  the  court  may  at  any  time  make 
such  temporary  restraining  order  or  prohibition  as  shall  be 
deemed  just  in  the  premises. 

Section  four  of  the  act  July  2,  1890,  known  as  the  Sherman 
Anti-Trust  Act. 

Preliininary  injunction  not  granted  when  bill  denied.  United 
States  V.  Jellico  IMountain  Coke  &  Coal  Co.,  43  Fed.  898,  1  Fed. 
Anti-Trust  Dec.  1.  Right  to  injunction  exists  only  in  favor  of 
the  government,  but  to  prevent  a  multiplicity  of  suits  an  indi- 
vidual may  sue  for  and  obtain  an  injunction.  Blindell  v.  Hagan, 
54  Fed.  40,  1  Fed.  Anti-Trust  Dec.  106.  Affirmed.  Hagan  v. 
Blindell.  56  Fed.  696,  6  C.  C.  A.  86.  1  Fed.  Anti-Trust  Dec.  182. 
Injunction  may  be  granted  against  a  combination  of  laborers. 
United  States  v.  AVorkingman 's  Amalg.  Council,  54  Fed.  994, 
26  L.  E.  A.  158,  1  Fed.  Anti-Trust  Dec.  110.  Affirmed.  Work- 
ingman's  Amalg.  Council  v.  United  States,  57  Fed.  85,  6  C.  C. 
A.  258,  1  Fed.  Anti-Trust  Dec.  184.  Injunction  order  binding 
on  one  not  named  in  the  bill  or  served  with  subpoena  if  served 
with  injunction  order.  United  States  v.  Agler,  62  Fed.  824,  1 
Fed.  Anti-Trust  Dec.  294.  May  sue  in  any  district  where  de- 
fendant found.  Dueber  Watch-Case  Mfg.  Co.  v.  Howard  Watch 
&  Clock  Co.,  66  Fed.  637,  14  C.  C.  A.  14,  1  Fed.  Anti-Trust  Dec. 
421.  Section  not  void.  United  States  v.  Elliott,  64  Fed.  27,  1 
Fed.  Anti-Trust  Dec.  311.  The  combination  described  not  il- 
legal and  federal  courts  can  not  enjoin  an  alleged  violation  of 
this  act  or  the  act  to  regulate  commerce.  United  States  v.  Joint 
Traffic  Asso.,  76  Fed.  895,  1  Fed.  Anti-Trust  Dec.  615.  Affirm- 
ed. 89  Fed.  1020,  32  C.  C.  A.  491,  45  U.  S.  App.  726,  1  Fed. 
Anti-Trust  Dec.  869.  Reversed  on  both  points  following  the 
Trans-Missouri  Freight  Asso.  Case  supra.  Same  style  case,  171 
U.  S.  505,  43  L.  Ed.  259,  19  Sup.  Ct.  25,  1  Fed.  Anti-Trust  Dec. 
869.  Applies  only  to  suits  by  the  government.  Greer,  Mills  & 
Co.  V.  Stoller,  77  Fed.  1,  1  Fed.  Anti-Trust  Dec.  620.  Suits  by 
the  United  States  rest  only  on  the  authority  of  the  act.  United 
States  V.  Addyston  Pipe  &  Steel  Co.,  78  Fed.  712,  1  Fed.  Anti- 
Trust  Dec.  631.  Reversed,  holding  a  bill  for  injunction  M^ould 
lie  in  favor  of  either  the  government  or  a  private  individual.  85 
Fed.  271,  46  L.  R.  A.  122,  1  Fed.  Anti-Trust  Dec.  772.    Affirmed. 


§  604.]  IN  Restraint  of  Trade.  517 

Addyston  Pipe  &  Steel  Co.  v.  United  States,  175  U.  S.  211,  44 
L.  Ed.  136,  20  Sup.  Ct.  96,  1  Fed.  Anti-Trust  Dec.  1009.  Re- 
straining order  may  issue  without  notice.  United  States  v.  Coal 
Dealers'  Asso.,  85  Fed.  252,  1  Fed.  Anti-Trust  Dec.  749.  Prin- 
ciples upon  which  injunction  should  be  granted  stated  in  a  case 
growing  out  of  United  States  v.  Northern  Securities  Co.  Case. 
Harriman  v.  Northern  Securities  Co.,  132  Fed.  464,  2  Fed.  Anti- 
Trust  Dee.  587.  Reversed.  Northern  Securities  Co.  v.  Harri- 
man, 134  Fed.  331,  67  C.  C.  A.  245,  2  Fed.  Anti-Trust  Dec.  618. 
Circuit  court  of  appeals  affirmed,  holding  that  property  de- 
livered under  an  executed  contract  of  sale  can  not  be  recovered 
by  one  in  pari  delicto.  Harriman  v.  Northern  Securities  Co., 
197  U.  S.  244,  49  L.  Ed.  739,  25  Sup.  Ct.  493,  2  Fed.  Anti-Trust 
Dec.  669.  Prior  to  Elkins  Act,  Feb.  19,  1903,  a  circuit  court  had 
no  jurisdiction  to  enjoin  the  granting  of  rebates,  although  the 
giving  of  the  rebate  was  alleged  to  be  in  violation  of  Anti-Trust 
Act.  United  States  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  142  Fed. 
176,  2  Fed.  Anti-Trust  Dec.  831.  Private  parties  may  obtain  an 
injunction  against  a  violation  from  which  they  suffer  special  in- 
jury.  Bigelow  v.  Calumet  &  Hecla  IMining  Co.,  155  Fed.  869, 
167  Fed.  704.  Affirmed,  not  discussing  this  point,  167  Fed.  721, 
C.  C.  A.  .  Same  rule  under  a  state  law.  Continental 
Securities  Co.  v.  Interborough  R.  T.  Co.,  165  Fed.  945. 

§  604.  Practice  with  reference  to  parties  and  service  of  sub- 
poena thereon. — Whenever  it  shall  appear  to  the  court  before 
which  any  proceeding  under  section  four  of  this  act  may  be 
pending  that  the  ends  of  justice  require  that  other  parties  should 
be  brought  before  the  court,  the  court  may  cause  them  to  be  sum- 
moned, whether  they  reside  in  the  district  in  which  the  court  is 
held  or  not ;  and  subpoenas  to  that  end  may  be  served  in  any  dis- 
trict by  the  marshal  thereof. 

Section  five  of  the  act  July  2,  1890,  Imown  as  the  Sherman 
Anti-Trust  Act. 

Injunction  order  may  be  enforced  against  defendants,  within 
the  scope  of  the  order,  though  not  named  in  the  bill,  such  de- 
fendants being  parties  to  the  conspiracy.  United  States  v. 
Elliott,  64  Fed.  27,  1  Fed.  Anti-Trust  Dec.  311.  Can  not  bring 
in  non-residents  of  the  district  at  suit  by  others  than  the  gov- 
ernment. Greer,  Mills  &  Co.  v.  Stoller,  77  Fed.  1,  1  Fed.  Anti- 
Trust  Dec.  620.  Non-rosidents  of  the  state  may  be  brought  in 
as  defendants.     United  States  v.  Standard  Oil  Co.  of  New  Jer- 


518  Trust  and  Otpier  Combinations  [§  605. 

sey,  152  Fed.  290;  United  States  v.  Virginia-Carolina  Chemical 
Co.,  163  Fed.  66;  Northern  Pac.  R.  Co.  v.  Pacific  C.  L.  Mfg. 
Asso.,  165  Fed.  1,  9,        C.  C.  A. 

§  605.  Property  owned  under  a  contract  violating  this  act 
being  in  course  of  interstate  transportation  may  be  seized  and  for- 
feited.— Any  property  OMTied  under  any  contract  or  by  any  com- 
bination, or  pursuant  to  any  conspiracy  (and  being  the  subject 
thereof)  mentioned  in  section  one  of  this  act,  and  being  in  the 
course  of  transportation  from  one  state  to  another,  or  to  a  for- 
eign country,  shall  be  forfeited  to  the  United  States,  and  may  be 
seized  and  condemned  by  like  proceedings  as  those  provided  by 
law  for  the  forfeiture,  seizure,  and  condemnation  of  property 
imported  into  the  United  States  contrary  to  law. 

Section  six  of  act  July  2,  1890,  known  as  the  Sherman  Anti- 
Trust  Act. 

No  seizure  can  be  had  of  goods  at  the  suit  of  the  United  States 
except  of  property  imported  into  the  United  States  contrary  to 
act.  United  States  v.  Addyston  Pipe  &  Steel  Co.,  85  Fed.  271, 
29  C.  C.  A.  141,  46  L.  R.  A.  122,  1  Fed.  Anti-Trust  Dec.  772. 
Affirmed,  without  discussion  of  the  question.  Addyston  Pipe 
&  Steel  Co.  V.  United  States,  375  U.  S.  211,  44  L.  Ed.  136,  20 
Sup.  Ct.  96,  1  Fed.  Anti-Trust  Dec.  1009. 

§  606.  Measure  of  damages  in  favor  of  persons  injured. — Any 
person  who  shall  be  injured  in  his  business  or  property  by  any 
other  person  or  corporation  by  reason  of  anything  forbidden  or 
declared  to  be  unlawful  by  this  act,  may  sue  therefor  in  any  cir- 
cuit court  of  the  United  States  in  the  district  in  which  the  de- 
fendant resides  or  is  found,  without  respect  to  the  amount  in 
controversy,  and  shall  recover  threefold  the  damages  by  him  sus- 
tained, and  the  costs  of  suit,  including  a  reasonable  attorney's 
fee. 

Section  seven  of  act  July  2,  1890,  known  as  the  Sherman  Anti- 
Trust  Act. 

A  person  who  has  sold  his  business  to  an  illegal  combination 
can  not  recover  under  this  act.  In  suits  for  damages  complaint 
must  allege  that  the  matters  out  of  which  the  suit  grows  consti- 
tute interstate  commerce.  Bishop  v.  Am.  Preservers'  Co.,  51 
Fed.  272,  1  Fed.  Anti-Trust  Dec.  49.  IMust  not  only  allege  that 
the  business  damaged  was  interstate  commerce  but  that  the  en- 
tire market  was  controlled.  Dueber  AVatch  Case  IMfg.  Co.  v. 
Howard  Watch  &  Clock  Co.,  55  Fed.  851,  1  Fed.  Anti-Trust  Dec. 


§  606.]  IN  Restraint  of  Trade.  519 

178.  Affirmed,  same  style  case,  66  Fed.  637,  14  C.  C.  A.  14,  1 
Fed.  Anti-Trust  Dec.  421.  The  private  shipper  can  not  obtain 
a  mandatory  writ  to  compel  the  carrier  to  grant  a  right,  though 
a  circuit  court,  as  a  court  of  equity,  can  afford  preventative  re- 
lief in  addition  to  damages.  Gulf  C.  &  S.  F.  Ey.  Co.  v.  Miami 
S.  S.  Co.,  86  Fed.  407,  421,  30  C.  C.  A.  142,  1  Fed.  Anti-Trust 
Dec.  823,  842,  843.  Remedy  for  damages  exclusive  and  a  private 
person  can  not  maintain  equitable  proceedings  to  enforce  the 
law.  So.  Ind.  Express  Co.  v.  United  States  Express  Co.,  88  Fed. 
659,  1  Fed.  Anti-Trust  Dec.  862.  Affirmed.  92  Fed.  1022,  35 
C.  C.  A.  172,  1  Fed.  Anti-Trust  Dec.  992;  Block  v.  Standard 
Distilling  and  Distributing  Co.,  95  Fed.  978,  1  Fed.  Anti-Trust 
Dec.  993.  Limitation  of  time  in  which  to  bring  suit  is  governed 
by  the  law  of  the  state  in  which  suit  is  brought.  Atlanta  v. 
Chattanooga  Foundry  &  Pipe  Co.,  101  Fed.  900,  2  Fed.  Anti- 
Trust  Dec.  11.  Reversed,  same  style  case,  127  Fed.  23,  61  C.  C. 
A.  387,  64  L.  R.  A.  721,  2  Fed.  Anti-Trust  Dec.  299.  Affirmed. 
Chattanooga  Foundry  &  Pipe  Co.  v.  Atlanta,  203  U.  S.  390, 
51  L.  Ed.  241,  27  Sup.  Ct.  65.  To  recover  must  not  only  show 
illegal  combination  but  that  plaintiff  has  suffered  damages,  that 
a  combination  of  dealers  sent  out  circulars  denouncing  a  dealer 
outside  the  combination  who  sold  in  other  states  whereby  his 
business  is  injured  authorized  a  recovery.  Gibbs  v.  McNeely, 
102  Fed.  594,  2  Fed.  Anti-Trust  Dec.  25.  No  recovery  for  sales 
in  the  state.  Same  case,  107  Fed.  210,  2  Fed.  Anti-Trust  Dec. 
71.  Reversed,  same  case,  118  Fed.  120,  55  C.  C.  A.  70,  60  L.  R. 
A.  152,  2  Fed.  Anti-Trust  Dec.  194,  holding  that  though  an 
agreement  does  not  refer  to  interstate  trade,  it  is  within  the  act 
if  its  purpose  and  effect  is  to  restrain  such  trade.  A  party  to 
an  illegal  combination  can  not  recover  damages  against  the 
combination  for  acts  growing  out  of  the  contract  creating  the 
combination.  Bishop  v.  American  Preservers'  Co.,  105  Fed.  845, 
1  Fed.  Anti-Trust  Dec.  51.  Damages  recoverable  and  attorney's 
fees  in  discretion  of  trial  court.  Lowry  v.  Tile  Mantel  &  Grate 
Asso.,  106  Fed.  38,  2  Fed.  Anti-Trust  Dec.  53.  Affirmed.  Mon- 
tague v.  Lowry,  115  Fed.  27,  52  C.  C.  A.  621,  2  Fed.  Anti-Trust 
Dec.  ]]2,  ]93  U.  S.  38,  48  L.  Ed.  608,  24  Sup.  Ct.  307,  2  Fed. 
Anti-Trust  Dec.  327.  A  minority  stoclvholder,  alleging  the  coi-- 
poration  has  transferred  its  property  to  an  illegal  combination, 
can  not  obtain  an  injunction  against  the  transfer-  iind  damages 
in  the  same  suit.     Mctcalf  v.  Aniericnn   School   I^'uruilure  Co., 


520  Trust  and  Other  Combinations  [§  607. 

108  Fed.  909,  2  Fed.  Anti-Trust  Dec.  75.  Affirmed.  113  Fed. 
1020,  51  C.  C.  A.  599,  2  Fed.  Anti-Trust  Dee.  111.  Bill  dis- 
missed. 122  Fed.  115,  2  Fed.  Anti-Trust  Dec.  234.  Only  actual 
damages  can  be  recovered.  Rule  as  to  loss  of  profits  stated. 
Central  Coal  &  Coke  Co.  v.  Hartman,  111  Fed.  96,  49  C.  C.  A. 
244,  2  Fed.  Anti-Trust  Dec.  94.  Damages  can  not  be  recovered 
because  a  company  refuses  to  sell  its  goods,  imless  the  purchaser 
refuses  to  deal  with  independent  companies,  the  defendant  owing 
no  duty  to  sell  its  products  to  plaintiff.  Whitwell  v.  Continental 
Tob.  Co.,  125  Fed.  454,  60  C.  C.  A.  290,  64  L.  R.  A.  689,  2  Fed. 
Anti-Trust  Dec.  271.  Petition  for  damages  must  definitely  de- 
scribe the  combination  and  conspiracy.  Rice  v.  Standard  Oil 
Co.,  134  Fed.  464,  2  Fed.  Anti-Trust  Dec.  633.  Rule  as  to 
measure  of  damages  and  burden  of  proof.  Loder  v.  Jayne,  142 
Fed.  1010,  2  Fed.  Anti-Trust  Dec.  976.  Reversed.  Jayne  v. 
Loder,  149  Fed.  21,  78  C.  C.  A.  653,  7  L.  R.  A.  (N.  S.)  984.  In 
a  suit  for  damages  under  this  section,  the  allegations  should  be 
specific.  Cilley  v.  United  Shoe  Mach.  Co.,  152  Fed.  726.  One 
who  is  harmed  in  business  or  property  may  recover.  "Wheeler- 
Stenzel  Co.  v.  National  Window  Glass  Jobbers'  Asso.,  152  Fed. 
864,  81  C.  C.  A.  658.  A  purchase  of  a  competing  refining  com- 
pany in  order  to  monopolize  the  refining  of  sugar  not  illegal. 
Penn.  Sugar  Refining  Co.  v.  American  Sugar  Refining  Co.,  160 
Fed.  144.  Reversed,  same  style  case,  166  Fed.  254,  C.  C.  A. 
.  No  right  of  action  when  merely  prevented  from  embarking 
on  a  new  business.  American  Banana  Co.  v.  United  Fruit  Co., 
160  Fed.  184.  Affirmed,  same  style  case,  166  Fed.  261,  C.  C. 
A.  ,  213  U.  S.  347,  53  L.  Ed.  ,  29  Sup.  Ct.  .  Allega- 
tion held  sufficient.  Monarch  Tob.  Works  v.  American  Tob.  Co., 
165  Fed.  774.  Limitation  law  of  the  state  in  which  suit  is 
brought  applies.  Chattanooga  Foundry  &  Pipe  Works  v.  At- 
lanta, 203  U.  S.  390,  51  L.  Ed.  241,  27  Sup.  Ct.  65. 

§  607.  Person  includes  corporation  and  association. — That  the 
word  "person,"  or  "persons,"  wherever  used  in  this  act  shall 
be  deemed  to  include  corporations  and  associations  existing 
under  or  authorized  by  the  laws  of  either  the  United  States,  the 
laws  of  any  of  the  territories,  the  laws  of  any  state,  or  the  laws 
of  any  foreign  country. 

Section  eight  of  the  act  of  July  2,  1890,  known  as  the  Sherman 
Anti-Trust  Act. 


§  608.]  IN  Restraint  of  Trade.  521 

Corporations  may  be  indicted.  United  States  v.  MacAndrews 
&  Forbes  Co.,  149  Fed.  823,  836. 

§  608.  Act  of  August  28.  1894,  so  far  as  it  relates  to  trusts 
and  combinations  in  restraint  of  trade. — Sec.  73.  That  every  com- 
bination, conspiracy,  trust,  agreement,  or  contract,  is  hereby 
declared  to  be  contrary  to  public  policy,  illegal,  and  void,  when 
the  same  is  made  by  or  between  two  or  more  persons  or  corpora- 
tions either  of  whom  is  engaged  in  importing  any  article  from 
any  foreign  country  into  the  United  States,  and  when  such  com- 
bination, conspiracy,  trust,  agreement,  or  contract  is  intended  to 
operate  in  restraint  of  lawful  trade,  or  free  competition  in  law- 
ful trade  or  commerce,  or  to  increase  the  market  price  in  any 
part  of  the  United  States  of  any  article  or  articles  imported  or 
intended  to  be  imported  into  the  United  States,  or  of  any  manu- 
facture into  which  such  imported  article  enters  or  is  intended  to 
enter.  Every  person  who  is  or  shall  hereafter  be  engaged  in 
the  importation  of  goods  or  any  commodity  from  any  foreign 
coimtry  in  violation  of  this  section  of  this  act,  or  who  shall  com- 
bine or  conspire  with  another  to  violate  the  same,  is  guilty  of  a 
misdemeanor,  and,  on  conviction  thereof  in  any  court  of  the 
United  States,  such  person  shall  be  fined  in  a  sum  not  less  than 
one  hundred  dollars  and  not  exceeding  five  thousand  dollars,  and 
shall  be  further  punished  by  imprisonment,  in  the  discretion  of 
the  court,  for  a  term  not  less  than  three  months  nor  exceeding 
twelve  months. 

Sec.  74.  That  the  several  circuit  courts  of  the  United  States 
are  hereby  invested  with  jurisdiction  to  prevent  and  restrain  vio- 
lations of  section  seventy -three  of  this  act;  and  it  shall  be  the 
duty  of  the  several  district  attorneys  of  the  United  States,  in 
their  respective  districts  under  the  direction  of  the  Attorney- 
General,  to  institute  proceedings  in  equity  to  prevent  and  re- 
strain such  violations.  Such  proceedings  may  be  by  way  of  peti- 
tions setting  forth  the  case  and  praying  that  such  violations 
shall  be  enjoined  or  otherwise  prohibited.  When  the  parties 
complained  of  shall  have  been  duly  notified  of  such  petition  the 
court  shall  proceed,  as  soon  as  may  be,  to  the  hearing  and  de- 
termination of  the  case;  and  pending  such  petition  and  before 
final  decree,  the  court  may  at  any  time  make  such  temporary  re- 
straining order  or  prohibition  as  shall  bo  deemed  just  in  the 
premises. 

Sec.  75.  That  whenever  it  shall  appear  to  the  court  before 


522  Trust  and  Other  Combinations  [§  608. 

which  any  proceeding  under  the  seventy-fourth  section  of  this 
act  may  be  pending,  that  the  ends  of  justice  require  that  other 
parties  should  be  brought  before  the  court,  the  court  may  cause 
them  to  be  summoned,  whether  they  reside  in  the  district  in 
which  the  court  is  held  or  not ;  and  subpoenas  to  that  end  may  be 
served  in  any  district  by  the  marshal  thereof. 

Sec.  76.  That  any  property  owned  under  any  contract  or  by 
a-ny  combination,  or  pursuant  to  any  conspiracy  (and  being  the 
subject  thereof)  mentioned  in  section  seventy-three  of  this  act, 
and  being  in  the  course  of  transportation  from  one  state  to  an- 
other, or  to  or  from  a  territory,  or  the  District  of  Columbia, 
shall  be  forfeited  to  the  United  States,  and  may  be  seized  and 
condemned  by  like  proceedings  as  those  provided  by  law  for  the 
forfeiture,  seizure,  and  condemnation  of  property  imported  into 
the  United  States  contrary  to  law. 

Sec.  77.  That  any  person  who  shall  be  injured  in  his  business 
or  property  by  any  other  person  or  corporation  by  reason  of  any- 
thing forbidden  or  declared  to  be  unlawful  by  this  act  may  sue 
therefor  in  any  circuit  court  of  the  United  States  in  the  district 
in  which  the  defendant  resides  or  is  found,  without  respect  to  the 
amount  in  controversy,  and  shall  recover  threefold  the  damages 
by  him  sustained,  and  the  costs  of  suit,  including  a  reasonable 
attorney's  fee. 

Received  by  the  President,  August  15,  1894. 

{Note  1)1)  the  Department  of  State. — The  foregoing  act  having 
been  presented  to  the  President  of  the  United  States  for  his 
approval,  and  not  having  been  returned  by  him  to  the  house  of 
Congress  in  which  it  originated  within  the  time  prescribed  by 
the  Constitution  of  the  United  States,  has  become  a  law  without 
his  approval.) 

Act  of  July  24,  1897,  §  34. 

******  *  *  And  provided  further,  that  nothing 
in  this  act  shall  be  construed  to  repeal  or  in  any  manner  affect 
the  sections  numbered  73,  74,  75,  76  and  77  of  an  act  entitled 
"An  act  to  reduce  taxation,  to  provide  revenue  for  the  govern- 
ment, and  for  other  purposes,"  which  became  a  law  on  the  twen- 
ty-eighth day  of  August,  1894. 


APPENDIX  A. 
THE  SAFETY  APPLIANCE  ACTS. 

An  Act  to  promote  the  safety  of  employees  and  travelers  upon  railroads 
by  compelling  common  carriers  engaged  in  interstate  commerce  to 
equip  their  cars  with  automatic  couplers  and  continuous  brakes  and 
their  locomotives  with  driving-wheel  brakes,  and  for  other  purposes. 

Be  it  enacted  by  tlie  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  that  from 
and  after  the  first  day  of  January,  eighteen  himdred  and  ninety- 
eight,  it  shall  be  unlawful  for  any  common  carrier  engaged  in 
interstate  commerce  by  railroad  to  use  on  its  line  any  locomotive 
engine  in  moving  interstate  traffic  not  equipped  with  a  power 
driving-wheel  brake  and  appliances  for  operating  the  train-brake 
system,  or  to  rim  any  train  in  such  traffic  after  said  date  that 
has  not  a  sufficient  number  of  cars  in  it  so  equipped  wdth  power 
or  train  brakes  that  the  engineer  on  the  locomotive  drawing 
such  train  can  control  its  speed  without  requiring  brakemen  to 
use  the  common  hand  brake  for  that  purpose. 

Sec.  2.  That  on  and  after  the  first  day  of  January,  eighteen 
hundred  and  ninety-eight,  it  shall  be  unlawful  for  any  such 
common  carrier  to  haul  or  permit  to  be  hauled  or  used  on  its 
line  any  car  used  in  moving  interstate  traffic  not  equipped  w'ith 
couplers  coupling  automatically  by  impact,  and  which  can  be 
uncoupled  M^thout  the  necessity  of  men  going  between  the  ends 
of  the  cars. 

Sec.  3.  That  when  any  person,  firm,  company,  or  corporation 
engaged  in  interstate  commerce  by  railroad  shall  have  equipped 
a  sufficient  number  of  its  cars  so  as  to  comply  with  the  pro- 
visions of  section  one  of  this  act,  it  may  lawfully  refuse  to  re- 
ceive from  connecting  lines  of  road  or  shippers  any  cars  not 
equipped  sufficiently,  in  accordance  with  the  first  section  of  this 
act,  with  such  poM'cr  or  train  brakes  as  will  work  and  readily  in- 
terchange with  the  brakes  in  use  on  its  own  cars,  as  required  by 
this  act. 

523 


524  Safety  Appliance  Acts. 

Sec.  4.  That  from  and  after  the  first  day  of  July,  eighteen 
hundred  and  ninety-five,  imtil  otherwise  ordered  by  the  Inter- 
state Commerce  Commission,  it  shall  be  imlawful  for  any  rail- 
road compan}'  to  use  any  ear  in  interstate  commerce  that  is  not 
provided  with  secure  grab  irons  or  handholds  in  the  ends  and 
sides  of  each  car  for  greater  security  to  men  in  coupling  and 
uncoupling  cars. 

Sec.  5.  That  within  ninety  days  from  the  passage  of  this  act 
the  American  Railway  Association  is  authorized  hereby  to  des- 
ignate to  the  Interstate  Commerce  Commission  the  standard 
height  of  drawbars  for  freight  ears,  measured  perpendicular 
from  the  level  of  the  tops  of  the  rails  to  the  centers  of  the  draw- 
bars, for  each  of  the  several  gauges  of  railroads  in  use  in  the 
United  States,  and  shall  fix  a  maximum  variation  from  such 
standard  height  to  be  allowed  between  the  drawbars  of  empty 
cars  and  loaded  cars.  Upon  their  determination  being  certified 
to  the  Interstate  Commerce  Commission,  said  commission  shall 
at  once  give  notice  of  the  standard  fixed  upon  to  all  common 
carriers,  owners,  or  lessees  engaged  in  interstate  commerce  in 
the  United  States  by  such  means  as  the  commission  may  deem 
proper.  But  should  said  association  fail  to  determine  a  standard 
as  above  provided,  it  shall  be  the  duty  of  the  Interstate  Com- 
merce Commission  to  do  so,  before  July  first,  eighteen  himdred 
and  ninety-four,  and  immediately  to  give  notice  thereof  as  afore- 
said. And  after  July  first,  eighteen  hundred  and  ninety-five, 
no  cars,  either  loaded  or  unloaded,  shall  be  used  in  interstate 
traffic  which  do  not  comply  with  the  standard  above  provided 
for. 

Sec.  6.  (As  amended  April  1,  1806)  That  any  such  common 
carrier  using  any  locomotive  engine,  running  any  train,  or  haul- 
ing or  permitting  to  be  hauled  or  used  on  its  line  any  car  in 
violation  of  any  of  the  provisions  of  this  act,  shall  be  liable  to  a 
penalty  of  one  hundred  dollars  for  each  and  every  such  viola- 
tion, to  be  recovered  in  a  suit  or  suits  to  be  brought  by  the 
United  States  District  Attorney  in  the  district  court  of  the 
United  States  having  jurisdiction  in  the  locality  where  such 
violation  shall  have  been  committed ;  and  it  shall  be  the  duty  of 
such  district  attorney  to  bring  such  suits  upon  verified  informa- 
tion being  lodged  with  him  of  such  violation  having  occurred; 
and  it  shall  also  be  the  duty  of  the  Interstate  Commerce  Com- 
mission to  lodge  with  the  proper  district  attorneys  information 
of  any  such  violations  as  may  come  to  its  knowledge :    Provided, 


Safety  Appliance  Acts.  525 

That  nothing  in  this  act  contained  shall  apply  to  trains  com- 
posed of  four-wheel  cars  or  to  trains  composed  of  eight-wheel 
standard  logging  ears  where  the  height  of  such  car  from  top 
of  rail  to  center  of  coupling  does  not  exceed  twenty-five  inches, 
or  to  locomotives  used  in  hauling  such  trains  when  such  cars  or 
locomotives  are  exclusively  used  for  the  transportation  of  logs. 

Sec.  7.  That  the  Interstate  Commerce  Commission  may  from 
time  to  time  upon  full  hearing  and  for  good  cause  extend  the 
period  within  which  any  common  carrier  shall  comply  with  the 
provisions  of  this  act. 

Sec.  8.  That  any  employee  of  any  such  common  carrier  who 
may  be  injured  by  any  locomotive,  car,  or  train  in  use  contrary 
to  the  provision  of  this  act  shall  not  be  deemed  thereby  to  have 
assumed  the  risk  therebj^  occasioned,  although  continuing  in 
the  employment  of  such  carrier  after  the  unlawful  use  of  such 
locoinotive,  car,  or  train  had  been  been  brought  to  his  knowledge. 

Public  No.  113,  approved  March  2,  1893,  amended  April  1, 
1896. 

Note. — Prescribed  standard  height  of  drawbars:  Standard- 
gauge  roads,  34^  inches;  narrow-gauge  roads,  26  inches;  max- 
imum variation  between  loaded  and  empty  cars,  3  inches. 

APPENDIX  B. 

An  Act  to  amend  an  act  entitled  ' '  An  act  to  promote  the  safety  of  em- 
ployees and  travelers  upon  railroads  by  compelling  common  carriers 
engaged  in  interstate  commerce  to  equip  their  cars  with  automatic 
couplers  and  continuous  brakes,  and  their  locomotives  with  driving- 
wheel  brakes,  and  for  other  purposes, ' '  approved  March  second, 
eighteen  hundred  and  ninety-three,  and  amended  April  first,  eighteen 
hundred  and  ninety-six. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled.  That  the 
provisions  and  requirements  of  the  act  entitled  "An  act  to  pro- 
mote the  safety  of  employees  and  travelers  upon  railroads  by 
compelling  common  carriers  engaged  in  interstate  commerce  to 
equip  their  cars  with  automatic  couplers  and  continuous  brakes, 
and  their  locomotives  with  driving-wheel  brakes,  and  for  other 
purposes,"  approved  March  second,  eighteen  hundred  and 
ninety-three,  and  amended  April  first,  eighteen  liundred  and 
ninety-six.  shall  be  luild  to  apply  to  common  carriers  by  rail- 
roads in  the  territories  and  the  District  of  Columbia  and  shall 


526  Safety  Appliance  Acts. 

apply  in  all  cases,  whether  or  not  the  couplers  brought  together 
are  of  the  same  kind.  make,  or  type;  and  tlie  provisions  and  re- 
quirements hereof  and  of  said  acts  relating  to  train  brakes,  auto- 
matic couplers,  grab  irons,  and  the  height  of  drawbars  shall  be 
held  to  apply  to  all  trains,  locomotives,  tenders,  cars,  and  sim- 
ilar vehicles  used  on  any  railroad  engaged  in  interstate  com- 
merce, and  in  the  territories  and  the  District  of  Columbia,  and  to 
all  other  locomotives,  tenders,  cars,  and  similar  vehicles  used  in 
connection  therewith,  excepting  those  trains,  cars,  and  locomo- 
tives exempted  by  the  provisions  of  section  six  of  said  act  of 
March  second,  eighteen  hundred  and  ninety -three,  as  amended 
by  the  act  of  April  first,  eighteen  hundred  and  ninety-six,  or 
which  are  used  upon  street  railways. 

Sec.  2.  That  whenever,  as  provided  in  said  act,  any  train  is 
operated  with  power  or  train  brakes,  not  less  than  fifty  per  cen- 
tum of  the  cars  in  such  train  shall  have  their  brakes  used  and 
operated  by  the  engineer  of  the  locomotive  drawing  such  train; 
and  all  power-braked  cars  in  such  train  which  are  associated  to- 
gether with  said  fifty  per  centum  shall  have  their  brakes  so  used 
and  operated;  and,  to  more  fully  carry  into  effect  the  objects  of 
said  act,  the  Interstate  Commerce  Commission  may,  from  time 
to  time,  after  full  hearing,  increase  the  minimum  percentage  of 
cars  in  any  train  required  to  be  operated  with  power  or  train 
brakes  which  must  have  their  brakes  and  operated  as  aforesaid; 
and  failure  to  comply  Avith  any  such  requirement  of  the  said 
Interstate  Commerce  Commission  shall  be  subject  to  the  like  pen- 
alty as  failure  to  comply  with  any  requirement  of  this  section. 

Sec.  3.  That  the  provisions  of  this  act  shall  not  take  effect 
until  September  first,  nineteen  hundred  and  three.  Nothing  in 
this  act  shall  be  held  or  construed  to  relieve  anj^  common  car- 
rier, the  Interstate  Commerce  Commission,  or  any  United  States 
district  attorney  from  any  of  the  provisions,  powers,  duties,  lia- 
bilities, or  requirements  of  said  act  of  March  second,  eighteen 
hundred  and  ninety-three,  as  amended  bj^  the  act  of 
April  first  eighteen  hundred  and  ninety-six;  and  all  of 
the  provisions,  powers,  duties,  requirements,  and  liabilities  of 
said  act  of  March  second,  eighteen  hundred  and  ninety-three, 
as  amended  by  the  act  of  April  first,  eighteen  himdred  and 
ninety-six,  shall,  except  as  specifically  amended  by  this  act.  apply 
to  this  act. 

Public,  No.  133,  approved  March  2,  1903. 


Interstate  Carriers  IMust  Report  Accidents,  527 

APPENDIX  C. 

An  act  requiring  common  carriers  engaged  in  interstate  commerce  to  make 
full  reports  of  all  accidents  to  the  Interstate  Commerce  Commission. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  in  Congress  assembled,  It  shall  be  the  duty  of 
the  general  manager,  superintendent,  or  other  proper  officer  of 
every  common  carrier  engaged  in  interstate  commerce  by  rail- 
road to  make  to  the  Interstate  Commerce  Commission,  at  its  of- 
fice in  Washington,  District  of  Columbia,  a  monthly  report, 
luider  oath,  of  all  collisions  of  trains  or  where  any  train  or  part 
of  a  train  accidentally  leaves  the  track,  and  of  all  accidents 
which  may  occur  to  its  passengers  or  employees  while  in  the 
service  of  such  common  carrier  and  actually  on  duty,  w^hich  re- 
port shall  state  the  nature  and  causes  thereof,  and  the  circum- 
stances connected  therewith. 

Sec.  2.  That  any  common  carrier  failing  to  make  such  report 
within  thirty  days  after  the  end  of  any  month  shall  be  deemed 
guiltj^  of  a  misdemeanor  and,  upon  conviction  thereof  by  a  court 
of  competent  jurisdiction,  shall  be  punished  by  a  fine  of  not  more 
than  one  hundred  dollars  for  each  and  every  offense  and  for 
every  day  during  which  it  shall  fail  to  make  such  report  after 
the  time  herein  specified  for  making  the  same. 

Sec.  3.  That  neither  said  report  nor  any  part  thereof  shall 
be  admitted  as  evidence  or  used  for  any  purpose  against  such 
railroad  so  making  such  report  in  any  suit  or  action  for  dam- 
ages growing  out  of  any  matter  mentioned  in  said  report. 

Sec.  4.  That  the  Interstate  Commerce  Commission  is  author- 
ized to  prescribe  for  such  common  carriers  a  method  and  form 
for  making  the  reports  in  the  foregoing  section  provided. 

Public  No.  171,  approved  March  3,  1901. 


APPENDIX  D. 

An  Act  to  promote  the  safety  of  employees  and  travelers  upon  railroads 
by  limiting  the  hours  of  service  of  employees  thereon. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  Ignited  States  of  America  in  Congress  assembled.  That  the 
provisions  of  this  act  shall  apply  to  any  common  carrier  or  car- 


528  Act  to  Limit  Hours  of  Service 

riers,  their  officers,  agents,  and  employees,  engaged  in  the  trans- 
portation of  passengers  or  property  by  railroad  in  the  District 
of  Columbia  or  any  territory  of  the  United  States,  or  from  one 
state  or  territory  of  the  United  Etates  or  the  District  of  Colum- 
bia to  any  other  state  or  territory  of  the  United  States  or  the 
District  of  Columbia,  or  from  any  place  in  the  United  States 
to  an  adjacent  foreign  country,  or  from  any  place  in  the  United 
States  through  a  foreign  country  to  any  other  place  in  the 
United  States.  The  term  "railroad"  as  used  in  this  act  shall 
include  all  bridges  and  ferries  used  or  operated  in  connection 
with  any  railroad,  and  also  all  the  road  in  use  by  any  common 
carrier  operating  a  railroad,  whether  owned  or  operated  under 
a  contract,  agreement,  or  lease;  and  the  term  ".employees"  as 
used  in  this  act  shall  be  held  to  mean  persons  actually  engaged 
in  or  connected  with  the  movement  of  any  train. 

Sec.  2.  That  it  shall  be  unlawful  for  any  common  carrier,  its 
officers  or  agents,  subject  to  this  act  to  require  or  permit  any 
employee  subject  to  this  act  to  be  or  remain  on  duty  for  a  longer 
period  than  sixteen  consecutive  hours,  and  whenever  any  such 
employee  of  such  common  carrier,  shall  have  been  continuously 
on  duty  for  sixteen  hours  he  shall  be  relieved  and  not  required 
or  permitted  again  to  go  on  duty  until  he  has  had  at  least  ten 
consecutive  hours  off  duty ;  and  no  such  employee  who  has  been 
on  duty  sixteen  hours  in  the  aggregate  in  any  twenty-four  hour 
period  shall  be  required  or  permitted  to  continue  or  again  go 
on  duty  without  having  had  at  least  eight  consecutive  hours  off 
duty:  Provided,  That  no  operator,  train  dispatcher,  or  other 
employee  who  by  the  use  of  the  telegraph  or  telephone  dispatches, 
reports,  transmits,  receives,  or  delivers  orders  pertaining  to  or 
affecting  train  movements  shall  be  required  or  permitted  to  be 
or  remain  on  duty  for  a  longer  period  than  nine  hours  in  any 
twenty-four  hour  period  in  all  towers,  offices,  places,  and  sta- 
tions continuously  operated  night  and  day,  nor  for  a  longer 
period  than  thirteen  hours  in  all  towers,  offices,  places,  and  sta- 
tions operated  only  during  the  daytime,  except  in  case  of  emer- 
gency, when  the  emploj^ees  named  in  this  proviso  may  be  per- 
mitted to  be  and  remain  on  duty  for  four  additional  hours  in  a 
twenty-four  hour  period  on  not  exceeding  three  daj^s  in  any 
week:  Provided  further,  The  Interstate  Commerce  Commission 
may  after  full  hearing  in  a  particular  case  and  for  good  cause 


OF  Employees  of  Interstate  Carriers.  529 

shown  extend  the  period  within  which  a  common  carrier  shall 
comply  with  the  provisions  of  this  proviso  as  to  such  case. 

Sec.  3.  That  any  such  common  carrier,  or  any  officer  or  agent 
thereof,  requiring  or  permitting  any  employee  to  go,  be,  or  re- 
main on  duty  in  violation  of  the  second  section  hereof,  shall  be 
liable  to  a  penalty  of  not  to  exceed  five  hundred  dollars  for  each 
and  every  violation,  to  be  recovered  in  a  suit  or  suits  to  be 
brought  by  the  United  States  district  attorney  in  the  district 
court  of  the  United  States  having  jurisdiction  in  the  locality 
where  such  violation  shall  have  been  committed;  and  it  shall  be 
the  duty  of  such  district  attorney  to  bring  such  suits  upon  satis- 
factory information  being  lodged  with  him;  but  no  such  suit 
shall  be  brought  after  the  expiration  of  one  year  from  the  date 
of  such  violation ;  and  it  shall  also  be  the  duty  of  the  Interstate 
Commerce  Commission  to  lodge  with  the  proper  district  attor- 
neys information  of  any  such  violations  as  may  come  to  its 
knowledge.  In  all  prosecutions  under  this  act  the  common  car- 
rier shall  be  deemed  to  have  had  loiowledge  of  all  acts  of  all  its 
officers  and  agents:  Provided,  That  the  provisions  of  this  act 
shall  not  apply  in  any  case  of  casualty  or  unavoidable  accident 
or  the  act  of  God ;  nor  where  the  delay  was  the  result  of  a  cause 
not  known  to  the  carrier  or  its  officer  or  agent  in  charge  of 
such  employee  at  the  time  said  employee  left  a  terminal,  and 
which  could  not  have  been  foreseen :  Provided  further,  That  the 
I^rovisions  of  this  act  shall  not  apply  to  the  crews  of  wrecking 
or  relief  trains. 

Sec.  4.  It  shall  be  the  duty  of  the  Interstate  Commerce  Com- 
mission to  execute  and  enforce  the  provisions  of  this  act,  and 
all  powers  granted  to  the  Interstate  Commerce  Commission  are 
hereby  extended  to  it  in  the  execution  of  this  act. 

See.  5.  That  this  act  shall  take  effect  and  be  in  force  one  year 
after  its  passage. 

Public  No.  274,  approved  March  4,  1907,  11.50  a.  m. 

APPENDIX  E. 

An  act  to  promote  the  safety  of  employees  on  railroads.     (Known  as  the 
Ash  Pan  Act.) 

Be  it  enacted  by  tlie  Senate  and  House  of  Representatives  of 
t}ie  United  States  of  America  in  Congress  as.sembled,  That  on 


530  Ash  Pan  Act. 

and  after  tlie  first  day  of  January,  nineteen  hundred  and  ten,  it 
shall  be  unlawful  for  any  common  carrier  en<jjaged  in  interstate 
or  foreign  commerce  by  railroad  to  use  any  locomotive  in  moving 
interstate  or  foreign  traffic,  not  equipped  with  an  nsli  pan.  which 
can  be  dumped  or  emptied  and  cleaned  without  the  necessity  of 
any  employee  going  under  such  locomotive. 

Sec.  2.  That  on  and  after  the  first  day  of  January,  nineteen 
hundred  and  ten,  it  shall  be  unlawful  for  an}^  common  carrier 
by  railroad  in  any  territory  of  the  United  States  or  the  District 
of  Columbia,  to  nse  any  locomotive  not  equipped  with  an  ash 
pan,  which  can  be  dumped  or  emptied  and  cleaned  without  the 
necessity  of  any  emploj^ee  going  under  such  locomotive. 

Sec.  3.  That  any  such  common  carrier  using  any  locomotive 
in  violation  of  any  of  the  provisions  of  this  act  shall  be  liable  to 
a  penalty  of  two  hundred  dollars  for  each  and  every  such  vio- 
lation, to  be  recovered  in  a  suit  or  suits  to  be  brought  by  the 
Imited  States  district  attorney  in  the  district  court  of  the  United 
States  having  jurisdiction  in  the  locality  where  such  violation 
shall  have  been  committed ;  and  it  shall  be  the  duty  of  such  dis- 
trict attorney  to  bring  such  suits  upon  duly  verified  informa- 
tion being  lodged  with  him  of  such  violation  having  occurred; 
and  it  shall  also  be  the  dutj^  of  the  Interstate  Commerce  Com- 
mission to  lodge  with  the  proper  district  attorneys  information 
of  any  such  violations  as  may  come  to  its  knowdedge. 

Sec.  4.  That  it  shall  be  the  duty  of  the  Interstate  Commerce 
Commission  to  enforce  the  provisions  of  this  act,  and  all  powers 
heretofore  granted  to  said  commission  are  hereby  extended  to 
it  for  the  purpose  of  the  enforcement  of  this  act. 

Sec.  5.  That  the  term  "common  carrier"  as  used  in  this  act 
shall  include  the  receiver  or  receivers  or  other  persons  or  cor- 
porations charged  with  the  duty  of  the  management  and  opera- 
tion of  the  business  of  a  common  carrier. 

Sec.  6.  That  nothing  in  this  act  contained  shall  apply  to  any 
locomotive  upon  which,  by  reason  of  the  use  of  oil,  electricity, 
or  other  such  agency,  an  ash  pan  is  not  necessary. 

Public  Number  165,  approved  May  30,  1908. 


Act  Relating  to  531 

APPENDIX  F. 

An  act  to  promote  the  safe  transportation  in  interstate  commerce  of  ex- 
plosives and  other  dangerous  articles,  and  to  provide  penalties  for  its 
violation. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  it 
shall  be  unlaAvful  to  transport,  carry,  or  convey  any  dynamite, 
gunpowder,  or  other  explosive  between  a  place  in  any  foreign 
country  and  a  place  within  the  United  States,  or  a  place  in  any 
state,  territory,  or  district  of  the  United  States,  and  a  place  in 
any  other  state,  territory,  or  district  thereof,  on  any  vessel  or 
vehicle  of  anj^  description  operated  by  a  common  carrier,  which 
vessel  or  vehicle  is  carrying  passengers  for  hire  :  Provided,  That 
it  shall  be  lawful  to  transport  on  any  such  vessel,  or  vehicle, 
small  arms  ammimition  in  any  quantity,  and  such  fuses,  tor- 
pedoes, rockets,  or  other  signal  devices  as  may  be  essential  to 
promote  safety  in  operation,  and  properly  packed  and  marked 
samples  of  explosives  for  laboratory  examination,  not  exceeding 
a  net  w'eight  of  one-half  pound  each,  and  not  exceeding  twenty 
samples  at  one  time  in  a  single  vessel  or  vehicle ;  but  such  sam- 
ples shall  not  be  carried  in  that  part  of  a  vessel  or  vehicle  which 
is  intended  for  the  transportation  of  passengers  for  hire :  And 
provided  further,  That  nothing  in  this  section  shall  be  construed 
to  prevent  the  transportation  of  military  or  naval  forces  with 
their  accompanying  mimitions  of  war  on  passenger  equipment 
vessels  or  vehicles. 

Sec.  2.  That  within  ninety  days  from  the  passage  of  this  act 
the  Interstate  Commerce  Commission  shall  formulate  regula- 
tions for  the  safe  transportation  of  explosives,  and  said  regula- 
tions shall  be  binding  upon  all  common  carriers  engaged  in  in- 
terstate commerce  which  transport  explosives  by  land,  and  vio- 
lations of  them  shall  be  subject  to  the  penalties  hereinafter  pro- 
vided. The  Interstate  Commerce  Commission,  on  its  own  mo- 
tion or  upon  application  made  by  any  interested  party,  may 
make  changes  or  modifications  of  the  regulations  for  the  safe 
transportation  of  explosives,  made  desirable  by  new  information 
or  altered  conditions,  and  such  changed  regulations  shall  have 
all  the  force  of  the  original  regulations.  The  regulations  for  the 
safe  transportation  of  explosives  referred  to  in  this  section  shall 
be  in  accord  with  the  best  known  practicable  means  for  securing 


532  Transportation  of  Explosives. 

safety  in  transit,  covering  the  packing,  marking,  loading,  hand- 
ling while  in  transit,  and  tlie  precautions  necessary  to  determine 
whether  the  material  when  offered  is  in  proper  condition  to  trans- 
port. The  regulations  for  the  safe  transportation  of  explosives 
shall  take  effect  three  months  after  their  information  and  pub- 
lication by  the  Interstate  Commerce  Commission,  and  shall  be 
in  effect  until  reversed,  set  aside,  or  modified. 

Sec.  3.  That  it  shall  be  unlawful  to  transport,  carry,  or  con- 
vey liquid  nitroglycerine,  fulminate  in  bulk  in  dry  condition,  or 
other  like  explosive  between  a  place  in  a  foreign  country  and 
a  place  within  the  United  States,  or  a  place  in  one  state,  terri- 
tory, or  district  of  the  United  States  and  a  place  in  any  other 
state,  territory,  or  district  thereof  on  any  vessel  or  vehicle  of 
any  description  operated  by  a  common  carrier  in  the  transporta- 
tion of  passengers  or  articles  of  commerce  by  land  or  water. 

Sec.  4.  Every  package  containing  explosives  or  other  danger- 
ous articles  when  presented  to  a  common  carrier  for  shipment 
shall  have  plainly  marked  on  the  outside  thereof  the  contents 
thereof,  and  it  shall  be  unlawful  for  any  person  to  deliver,  for 
interstate  or  foreign  transportation,  to  any  common  carrier  en- 
gaged in  interstate  or  foreign  commerce  by  land  or  water,  or 
to  cause  to  be  delivered,  or  to  carry,  any  explosive,  or  other 
dangerous  article,  under  any  false  or  deceptive  marking,  de- 
scription, invoice,  shipping  order,  or  other  declaration,  or  with- 
out informing  the  agent  of  such  carrier  of  the  true  character 
thereof,  at  or  before  the  time  such  delivery  or  carriage  is  made. 

Sec.  5.  That  every  person  who  Icnowingly  violates,  or  causes 
to  be  violated,  any  of  the  foregoing  provisions  of  this  act  shall 
be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction  thereof 
shall  be  punished  for  each  offense  by  a  fine  not  exceeding  two 
thousand  dollars,  or  by  imprisonment  not  exceeding  eighteen 
months,  or  by  both  such  fine  and  imprisonment,  in  the  discre- 
tion of  the  court. 

Sec.  6.  That  this  act  shall  take  effect  immediately,  and  all 
acts  or  parts  of  acts  in  conflict  therewith  are  hereby  repealed, 
except  section  forty-four  hundred  and  twenty-two  of  the  Re- 
vised Statutes  of  the  United  States  which  shall  remain  in  full 
force  and  effect. 

Public  No.  174,  approved  May  30,  1908. 


Employers'  Llvbility  Act.  533 

APPENDIX  G. 
EMPLOYER'S  LIABILITY  ACT. 

An  Act  relating  to  the  liability  of   common  carriers  by  railroad  to  their 
employees  in  certain  cases. 

(Act  of  1908.) 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  every 
common  carrier  by  railroad  while  engaging  in  commerce  between 
any  of  the  several  states  or  territories,  or  between  any  of  the 
states  and  territories,  or  between  the  District  of  Columbia  and 
any  of  the  states  or  territories,  or  between  the  District  of  Co- 
lumbia, or  any  of  the  states  or  territories  and  any  foreign  na- 
tion or  nations,  shall  be  liable  in  damages  to  any  person  suffering 
injury  while  he  is  employed  by  such  carrier  in  such  commerce, 
or  in  case  of  the  death  of  such  employee,  to  his  or  her  personal 
representative  for  the  benefit  of  the  surviving  widow  or  husband 
and  children  of  such  employee;  and  if  none,  then  of  such  em- 
ployee's parents,  and  if  none,  then  to  the  next  of  kin  dependent 
upon  such  employee  for  such  injury  or  death  resulting  in  whole 
or  in  part  from  the  negligence  of  any  of  the  officers,  agents  or 
employees  of  such  carrier,  or  by  reason  of  any  defect  or  insuf- 
ficiency due  to  its  negligence,  in  its  cars,  engines,  appliances, 
machinery,  track,  road-bed,  works,  boats,  wharves,  or  other 
equipment. 

Sec.  2.  That  every  common  carrier  by  railroad  in  the  terri- 
tories, the  District  of  Columbia,  the  Panama  Zone,  or  other  pos- 
sessions of  the  United  States,  shall  be  liable  in  damages  to  any 
person  suffering  injury  while  he  is  employed  by  such  carrier  in 
any  of  said  jurisdictions,  or  in  case  of  the  death  of  such  em- 
ployee, to  his  or  her  personal  representatives,  for  the  benefit  of 
the  surviving  widow  or  husband  and  children  of  such  employee; 
and  if  none,  then  of  such  employee's  parents;  and  if  none,  then 
of  the  next  of  kin  dependent  upon  such  employee,  for  such  in- 
jury or  death  resulting  in  whole  or  in  part  from  tlie  negligence 
ol"  any  of  the  officers,  agents  or  employees  of  such  carrier,  or  by 
reason  of  Miiy  dci'v.c.t  or  insufficiency  due  to  its  negligence  in  its 
cars,  engines,  appliances,  nuicliiiiery,  track,  road-bed,  works, 
boats,  wharves  or  other  eqiii[)inent. 


534  Employers'  Liability  Act. 

Sec.  3.  That  in  all  actions  hereafter  brought  against  any  such 
common  carrier  by  railroad  under  or  by  virtue  of  the  provisions 
of  this  act  to  recover  damages  for  personal  injury  to  an  em- 
ployee, or  where  such  injuries  have  resulted  in  his  death,  the 
fact  that  the  employee  may  have  been  guilty  of  contributory 
negligence  shall  not  bar  a  recovery  but  the  damages  shall  be 
diminished  by  the  jury  in  proportion  to  the  amount  of  negli- 
gence attributable  to  such  employee :  Provided,  however,  That 
no  such  employee  who  may  be  injured  or  killed  shall  be  held  to 
have  been  guilty  of  contributory  negligence  in  any  case  where 
the  violation  by  such  common  carrier  of  any  statute  enacted  for 
the  safety  of  employees  contributed  to  the  injury  or  death  of 
such  employee. 

Sec.  4.  That  in  any  action  brought  against  any  common  car- 
rier under  or  by  virtue  of  any  of  the  provisions  of  this  act  to 
recover  damages  for  injuries  to,  or  the  death  of,  any  of  its  em- 
ployees, such  employees  shall  not  be  held  to  have  assumed  the 
risk  of  his  employment  in  any  case  where  the  violation  by  such 
common  carrier  of  any  statute  enacted  for  the  safety  of  em- 
ployees contributed  to  the  injury  or  death  of  such  employee. 

Sec.  5.  That  any  contract,  rule,  regulation,  or  device  whatso- 
ever, the  purpose  and  intent  of  which  shall  be  to  enable  any 
common  carrier  to  exempt  itself  from  any  liability  created  by 
this  act,  shall  to  that  extent  be  void :  Provided,  That  in  any 
action  brought  against  any  such  common  carrier  under  or  by 
virtue  of  any  of  the  provisions  of  this  act,  such  common  carrier 
may  set  off  therein  any  sum  it  has  contributed  or  paid  to  any 
insurance,  or  relief  benefit,  or  indemnity  that  may  have  been 
paid  to  the  injured  employee,  or  the  person  entitled  thereto,  on 
account  of  the  injury  or  death  for  which  said  action  was  brought. 

Sec.  6.  That  no  action  shall  be  maintained  under  this  act  un- 
less commenced  within  two  years  from  the  day  the  cause  of  action 
accrued. 

Sec.  7.  That  the  term  "common  carrier"  as  used  in  this  act 
shall  include  the  receiver  or  receivers,  or  other  persons  or  cor- 
porations charged  with  the  duty  of  the  management  of  the  busi- 
ness of  a  common  carrier. 

Sec.  8.  That  nothing  in  this  act  shall  be  held  to  limit  the 
duty  or  liability  of  common  carriers  or  impair  the  rights  of 
their  employees  under  any  other  act  or  acts  of  Congress,  or 
to  affect  the  prosecution  of  any  pending  proceeding  or  right  of 


Arbitration  Act.  .    535 

action  imder  tlie  act  of  Congress,  entitled  "An  act  relating  to 
liability  of  common  carriers  in  the  District  of  Columbia  and  ter- 
ritories, and  to  common  carriers  engaged  in  commerce  between 
the  states  and  between  the  states  and  foreign  nations  to  their 
employees,"  approved  June  11,  1906. 
Approved  April  22,  1908. 

APPENDIX  H. 
ARBITRATION  ACT. 

An  Act  concerning  carriers  engaged,  in  interstate  commerce  and  their  em- 
ployees. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  the 
provisions  of  this  act  shall  apply  to  any  common  carrier  or  car- 
riers and  their  officers,  agents  and  employees,  except  masters  of 
vessels  and  seamen,  as  defined  in  section  forty-six  hundred  and 
twelve,  Revised  Statutes  of  the  United  States,  engaged  in  the 
transportation  of  passengers  or  property  wholly  by  railroad,  or 
partly  by  railroad  and  partly  by  water,  for  a  continuous  carriage 
or  shipment,  from  one  state  or  territory  of  the  United  States,  or 
the  District  of  Columbia,  to  any  other  state  or  territory  of  the 
United  States,  or  the  District  of  Columbia,  or  from  any  place  in 
the  United  States  to  an  adjacent  foreign  country,  or  from  any 
place  in  the  United  States  through  a  foreign  coimtry  to  any  other 
place  in  the  United  States. 

The  term  "railroad"  as  used  in  this  act  shall  include  all 
bridges  and  ferries  used  or  operated  in  connection  with  any 
railroad,  and  also  all  the  road  in  use  by  any  corporation  opera- 
ting a  railroad,  whether  owned  or  operated  under  a  contract, 
agreement,  or  lease;  and  the  term  "transportation"  shall  include 
all  instrumentalities  of  shipment  or  carriage. 

The  term  "employee"  as  used  in  this  act  shall  include  all 
persons  actually  engaged  in  any  capacity  in  train  operation  or 
train  service  of  any  description,  and  notwithstanding  that  the 
cars  upon  or  in  which  they  are  employed  may  be  held  and  oper- 
ated by  the  carrier  under  lease  or  other  contract:  Provided, 
however,  That  this  act  shall  not  be  held  to  apply  to  employees 
of  street  railroads  and  shall  apply  only  to  employees  engaged  in 


536  Arbitration  Act. 

railroad  train  service.  In  every  such  case  the  carrier  shall  be 
responsible  for  the  acts  and  defaults  of  such  employees  in  the 
same  manner  and  to  the  same  extent  as  if  said  cars  were  owned 
by  it  and  said  employees  directly  employed  by  it,  and  any  pro- 
visions to  the  contrary  of  any  such  lease  or  other  contract  shall 
be  binding  only  as  between  the  parties  thereto  and  shall  not 
affect  the  obligations  of  said  carrier  either  to  the  public  or  to 
the  private  parties  concerned. 

Sec.  2.  That  whenever  a  controversy  concerning  wages,  hours 
of  labor,  or  conditions  of  employment  shall  arise  between  a  car- 
rier subject  to  this  act  and  the  employees  of  such  carrier,  ser- 
iously interrupting  or  threatening  to  interrupt  the  business  of 
said  carrier,  the  chairman  of  the  Interstate  Commerce  Commis- 
sion and  the  Commissioner  of  Labor  shall,  upon  the  request  of 
either  party  to  the  controversy,  with  all  practicable  expedition, 
put  themselves  in  communication  with  the  parties  to  such  con- 
troversy, and  shall  use  their  best  efforts,  by  mediation  and  con- 
ciliation, to  amicably  settle  the  same;  and  if  such  efforts  shall 
be  unsuccessful,  shall  at  once  endeavor  to  bring  about  an  arbi- 
tration of  said  controversy  in  accordance  with  the  provisions  of 
this  act. 

Sec.  3.  That  whenever  a  controversy  shall  arise  betw^een  a  car- 
rier subject  to  this  act  and  the  employees  of  such  carrier  which 
cannot  be  settled  by  mediation  and  conciliation  in  the  manner 
provided  in  the  preceding  section,  said  controversy  may  be  sub- 
mitted to  the  arbitration  of  a  board  of  three  persons,  who  shall 
be  chosen  in  the  manner  following:  One  shall  be  named  by  the 
carrier  or  employer  directly  interested ;  the  other  shall  be  named 
by  the  labor  organization  to  which  the  employees  directly  inter- 
ested belong,  or,  if  they  belong  to  more  than  one,  by  that  one  of 
them  which  specially  represents  employees  of  the  same  grade  and 
class  and  engaged  in  services  of  the  same  nature  as  said  em- 
ployees so  directly  interested:  Provided,  however,  That  w'hen 
a  controversy  involves  and  affects  the  interests  of  two  or  more 
classes  and  grades  of  employees  belonging  to  different  labor  or- 
ganizations, such  arbitrator  shall  be  agreed  upon  and  designated 
by  the  concurrent  action  of  all  such  labor  organizations;  and  in 
cases  where  the  majority  of  such  employees  are  not  members  of 
any  labor  organization,  said  emploj^ees  may  by  a  majority  vote 
select  a  committee  of  their  own  number,  which  committee  shall 
have  the  right  to  select  the  arbitrator  on  behalf  of  said  em- 


Arbitration  Act.  537 

ployees.  The  two  thus  chosen  shall  select  the  third  commissioner 
of  arbitration ;  but,  in  the  event  of  their  failure  to  name  such 
arbitrator  within  five  days  after  their  first  meeting,  the  third 
arbitrator  shall  be  named  by  the  commissioners  named  in  the 
preceding  section.  A  majority  of  said  arbitrators  shall  be  com- 
petent to  make  a  valid  and  binding  award  under  the  provisions 
hereof.  The  submission  shall  be  in  writing,  shall  be  signed  by 
the  employer  and  by  the  labor  organization  representing  the 
employees,  shall  specify  the  time  and  place  of  meeting  of  said 
board  of  arbitration,  shall  state  the  questions  to  be  decided,  and 
shall  contain  appropriate  provisions  by  which  the  respective 
parties  shall  stipulate,  as  follows : 

First.  That  the  board  of  arbitration  shall  commence  their 
hearings  within  ten  days  from  the  date  of  the  appointment  of  the 
third  arbitrator,  and  shall  find  and  file  their  award,  as  pro- 
vided in  this  section,  within  thirty  days  from  the  date  of  the 
appointment  of  the  third  arbitrator ;  and  that  pending  the  arbi- 
tration the  status  existing  immediately  prior  to  the  dispute 
shall  not  be  changed :  Provided,  That  no  employee  shall  be  com- 
pelled to  render  personal  service  without  his  consent. 

Second.  That  the  award  and  the  papers  and  proceedings,  in- 
cluding the  testimony  relating  thereto  certified  under  the  hands 
of  the  arbitrators  and  which  shall  have  the  force  and  efi^ect  of 
a  bill  of  exceptions,  shall  be  filed  in  the  clerk's  office  of  the  cir- 
cuit court  of  the  United  States  for  the  district  wherein  the  con 
troversy  arises  or  the  arbitration  is  entered  into,  and  shall  be 
final  and  conclusive  upon  both  parties,  unless  set  aside  for  error 
of  law  apparent  on  the  record. 

Third.  That  the  respective  parties  to  the  award  will  each 
faithfully  execute  the  same,  and  that  the  same  may  be  specific- 
ally enforced  in  equity  so  far  as  the  powers  of  a  court  of  equity 
permit.  Provided,  That  no  injunction  or  other  legal  process 
shall  be  issued  which  shall  compel  the  performance  by  any 
laborer  against  his  will  of  a  contract  for  personal  labor  or  ser- 
vice. 

Fourth,  That  the  employees  dissatisfied  with  the  award  shall 
not  by  reason  of  such  dissatisfiaction  quit  the  service  of  the  em- 
ployer before  the  expiration  of  three  months  from  and  after  the 
making  of  such  award  without  giving  thirty  days  notice  in  writ- 
ing of  their  intention  so  to  quit.  Nor  shall  the  employer  dis- 
satisfied with  such  award  dismiss  any  employee  or  employees 


538  Arbitration  Act. 

on  account  of  such  dissatisfaction  before  the  expiration  of  three 
months  from  and  after  the  making  of  such  award  without  giving 
thirty  days'  notice  in  writing  of  his  intention  so  to  discharge. 

Fifth.  That  said  award  shall  continue  in  force  as  between 
the  parties  thereto  for  the  period  of  one  year  after  the  same 
shall  go  into  practical  operation,  and  no  new  arbitration  upon 
the  same  subject  between  the  same  employer  and  the  same  class 
of  employees  shall  be  had  until  the  expiration  of  said  one  year 
if  the  award  is  not  set  aside  as  provided  in  section  four.  That 
as  to  individual  employees  not  belonging  to  the  labor  organiza- 
tion or  organizations  which  shall  enter  into  the  arbitration,  the 
said  arbitration  and  the  award  made  therein  shall  not  be  bind- 
ing, unless  the  said  individual  employees  shall  give  assent  in 
writing  to  become  parties  to  said  arbitration. 

Sec.  4.  That  the  award  being  filed  in  the  clerk's  office  of  a 
circuit  court  of  the  United  States,  as  hereinbefore  provided,  shall 
go  into  practical  operation,  and  judgment  shall  be  entered  there- 
on accordingly  at  the  expiration  of  ten  days  from  such  filing, 
unless  within  such  ten  days  either  party  shall  file  exceptions 
thereto  for  matter  of  law  apparent  upon  the  record,  in  which 
case  said  award  shall  go  into  practical  operation  and  judgment  be 
entered  accordingly  when  such  exceptions  shall  have  been  finally 
disposed  of  either  by  said  circuit  court  or  on  appeal  therefrom. 

At  the  expiration  of  ten  days  from  the  decision  of  the  circuit 
court  upon  exceptions  taken  to  said  award,  as  aforesaid,  judg- 
ment shall  be  entered  in  accordance  with  said  decision  unless 
during  said  ten  days  either  party  shall  appeal  therefrom  to  the 
circuit  court  of  appeals.  In  such  case  only  such  portion  of  the 
record  shall  be  transmitted  to  the  appellate  court  as  is  necessary 
to  the  proper  understanding  and  consideration  of  the  questions 
of  law  presented  by  said  exceptions  and  to  be  decided. 

The  determination  of  said  circuit  court  of  appeals  upon  said 
questions  shall  be  final,  and  being  certified  by  the  clerk  thereof 
to  said  circuit  court,  judgment  pursuant  thereto  shall  thereupon 
be  entered  by  said  circuit  court. 

If  exceptions  to  an  award  are  finally  sustained,  judgment  shall 
be  entered  setting  aside  the  award.  But  in  such  case  the  parties 
may  agree  upon  a  judgment  to  be  entered  disposing  of  the  sub- 
ject-matter of  the  controversy,  which  judgment  when  entered 
shall  have  the  same  force  and  effect  as  judgment  entered  upon 
an  award. 


Arbitration  Act.  539 

See.  5.  That  for  the  purpose  of  this  act  the  arbitrators  herein 
provided  for,  or  either  of  them,  shall  have  power  to  administer 
oaths  and  affirmations,  sign  subpcenas,  require  the  attendance 
and  testimony  of  witnesses,  and  the  production  of  such  books, 
papers,  contracts,  agreements,  and  documents  material  to  a  just 
determination  of  the  matters  mider  investigation  as  may  be  or- 
dered by  the  court ;  and  may  invoke  the  aid  of  the  United  States 
courts  to  compel  witnesses  to  attend  and  testify  and  to  produce 
such  books,  papers,  contracts,  agreements  and  documents  to  the 
same  extent  and  under  the  same  conditions  and  penalties  as  is 
provided  for  in  the  act  to  regulate  commerce,  approved  Febru- 
ary fourth,  eighteen  hundred  and  eighty-seven,  and  the  amend- 
ments thereto. 

Sec.  6.  That  every  agreement  of  arbitration  under  this  act  shall 
be  aclmowledged  by  the  parties  before  a  notary  public  or  clerk 
of  a  district  or  circuit  court  of  the  United  States,  and  when  so 
acknowledged  a  copy  of  the  same  shall  be  transmitted  to  the 
chairman  of  the  Interstate  Commerce  Commission,  who  shall  file 
the  same  in  the  office  of  said  commission. 

Any  agreement  of  arbitration  which  shall  be  entered  into  con- 
forming to  this  act,  except  that  it  shall  be  executed  by  employees 
individually  instead  of  by  a  labor  organization  as  their  repre- 
sentative, shall,  when  duly  aclmowledged  as  herein  provided,  be 
transmitted  to  the  chairman  of  the  Interstate  Commerce  Com- 
mission, who  shall  cause  a  notice  in  writing  to  be  served  upon  the 
arbitrators,  fixing  a  time  and  place  for  a  meeting  of  said  board, 
which  shall  be  within  fifteen  days  from  the  execution  of  said 
agreement  of  arbitration  :  Provided,  however,  That  the  said  chair- 
man of  the  Interstate  Commerce  Commission  shall  decline  to 
call  a  meeting  of  arbitrators  under  such  agreement  unless  it  be 
shown  to  his  satisfaction  that  the  employees  signing  the  submis- 
sion represent  or  include  a  majority  of  all  employees  in  the  ser- 
vice of  the  same  employer  and  of  the  same  grade  and  class,  and 
that  an  award  pursuant  to  said  submission  can  justly  be  regard- 
ed as  binding  upon  all  such  employees. 

Sec.  7.  That  during  the  pendency  of  arbitration  under  this  act 
it  shall  not  be  lawful  for  the  employer,  party  to  such  arbitration, 
to  discharge  the  employees,  parties  thereto,  except  for  ineffi- 
ciency, violati(m  of  law,  or  neglect  of  duty;  nor  for  the  organiza- 
tion representing  such  employees  to  order,  nor  for  the  employees 
to   unite   in,  aid,   or  abet,  strikes  against  said   employer;  nor, 


540  Arbitration  Act. 

during  a  period  of  three  months  after  an  award  under  such  an 
arbitration,  for  such  employer  to  discharge  any  such  employees, 
except  for  the  causes  aforesaid,  without  giving  thirty  days'  writ- 
ten notice  of  an  intent  so  to  discharge ;  nor  for  any  of  such  em- 
ployees, during  a  like  period,  to  quit  the  service  of  said  em- 
ployer without  just  cause,  without  giving  to  said  employer  thirty 
days'  written  notice  of  an  intent  so  to  do;  nor  for  such  organiza- 
tion representing  such  employees  to  order,  counsel,  or  advise 
otherwise.  Any  violation  of  this  section  shall  subject  the  offend- 
ing party  to  liability  for  damages :  Provided,  That  nothing  herein 
contained  shall  be  construed  to  prevent  any  employer,  party  to 
such  arbitration,  from  reducing  the  number  of  its  or  his  em- 
ployees whenever  in  its  or  his  judgment  business  necessities 
require  such  reduction. 

Sec.  8.  That  in  every  incorporation  under  the  provisions  of 
chapter  five  hundred  and  sixty-seven  of  the  United  States  Stat- 
utes of  eighteen  hundred  and  eighty-five  and  eighteen  hundred 
and  eighty-six  it  must  be  provided  in  the  articles  of  incorpora- 
tion and  in  the  constitution,  rules,  and  by-laws  that  a  member 
shall  cease  to  be  such  by  participating  in  or  by  instigating  force 
or  violence  against  persons  or  property  during  strikes,  lockouts, 
or  boycotts,  or  by  seeking  to  prevent  others  from  w^orking 
through  violence,  threats,  or  intimidations.  jMembers  of  such  in- 
corporations shall  not  be  personally  liable  for  the  acts,  debts, 
or  obligations  of  the  corporations,  nor  shall  such  corporations  be 
liable  for  the  acts  of  members  or  others  in  violation  of  law ;  and 
such  corporations  may  appear  by  designated  representatives  be- 
fore the  board  created  by  this  act,  or  in  any  suits  or  proceedings 
for  or  against  such  corporations  or  their  members  in  any  of  the 
federal  courts. 

Sec.  9.  That  whenever  receivers  appointed  by  federal  courts 
are  in  the  possession  and  control  of  railroads,  the  employees  upon 
such  railroads  shall  have  the  right  to  be  heard  in  such  courts 
upon  all  questions  affecting  the  terms  and  conditions  of  their 
employment,  though  the  officers  and  representatives  of  their  as- 
sociations, whether  incorporated  or  unincorporated,  and  no  re- 
duction of  wages  shall  be  made  by  such  receivers  without  the 
authority  of  the  court  therefor  upon  notice  to  such  employees, 
said  notice  to  be  not  less  than  twenty  days  before  the  hearing 
upon  the  receivers'  petition  or  application,  and  to  be  posted  upon 


Arbitration  Act.  541 

all  customary  bulletin  boards  along  or  upon  the  railway  oper- 
ated by  such  receiver  or  receivers. 

Sec.  10.  That  any  employer  subject  to  the  provisions  of  this 
act  and  any  officer,  agent,  or  receiver  of  such  employer  who  shall 
require  any  employee,  or  any  person  seeking  employment,  as  a 
condition  of  such  employment,  to  enter  into  an  agreement,  either 
written  or  verbal,  not  to  become  or  remain  a  member  of  any 
labor  corporation,  association,  or  organization ;  or  shall  threaten 
any  employee  with  loss  of  employment,  or  shall  unjustly  dis- 
criminate against  any  employee  because  of  his  membership  in 
such  a  labor  corporation,  association,  or  organization;  or  who 
shall  require  any  employee  or  any  person  seeking  employment,  as 
a  condition  of  such  employment,  to  enter  into  a  contract  whereby 
such  employee  or  applicant  for  employment  shall  agree  to  con- 
tribute to  any  fund  for  charitable,  social,  or  beneficial  purposes ; 
to  release  such  employer  from  legal  liability  for  any  personal  in- 
jury by  reason  of  any  benefit  received  from  such  fund  beyond 
the  proportion  of  the  benefit  arising  from  the  'employer's  con- 
tribution to  such  fund;  or  who  shall,  after  having  discharged 
an  employee,  attempt  or  conspire  to  prevent  such  employee  from 
obtaining  employment,  or  who  shall,  after  the  quitting  of  an 
employee,  attempt  or  conspire  to  prevent  such  employee  from  ob- 
taining employment,  is  hereby  declared  to  be  guilty  of  a  mis- 
demeanor, and,  upon  conviction  thereof  in  any  court  of  the  Unit- 
ed States  of  competent  jurisdiction  in  the  district  in  which  such 
offense  was  committed,  shall  be  punished  for  each  offense  by  a 
fine  of  not  less  than  one  himdred  dollars  and  not  more  than  one 
thousand  dollars. 

Sec.  11.  That  each  member  of  said  board  of  arbitration  shall 
receive  a  compensation  of  ten  dollars  per  day  for  the  time  he  is 
actually  employed,  and  his  traveling  and  other  necessary  ex- 
penses; and  a  sum  of  money  sufficient  to  pay  the  same,  together 
with  the  traveling  and  other  necessary  and  proper  expenses  of 
any  conciliation  or  arbitration  had  hereunder,  not  to  exceed  ten 
thousand  dollars  in  any  one  j^ear,  to  be  approved  by  the  chair- 
man of  the  Interstate  Commerce  Commission  and  audited  by  the 
proper  accounting  officers  of  the  treasury,  is  hereby  appropri- 
ated for  the  fiscal  years  ending  Juno  thirtieth,  eighteen  hundred 
and  ninety-eight,  and  June  lliiitictli,  eighteen  hundred  and 
ninety-nine,  out  of  any  money  in  tlio  ti'c;isury  not  otherwise  ap- 
prox)riated. 


542  Corporation  Tax  Act. 

Sec.  12.  That  the  act  to  create  boards  of  arbitration  or  com- 
mission for  settling  controversies  and  differences  between  rail- 
road corporations  and  other  common  carriers  engaged  in  inter- 
state or  territorial  transportation  of  property  or  persons  and 
their  employees,  approved  October  first,  eighteen  hundred  and 
eighty-eight,  is  hereby  repealed. 

Public  No.  115,  approved  June  1,  1898. 


APPENDIX  I. 

CORPORATION  TAX  ACT. 

Sec.  38.  That  every  corporation,  joint  stock  company  or  asso- 
ciation, organized  for  profit  and  having  a  capital  stock  repre- 
sented by  shares,  and  every  insurance  company,  now  or  here- 
after organized-  under  the  laws  of  the  United  States  or  of  any 
state  or  territory  of  the  United  States  or  raider  the  acts  of  Con- 
gress applicable  to  Alaska  or  the  District  of  Columbia,  or  now  or 
hereafter  organized  under  the  laws  of  any  foreign  country  and 
engaged  in  business  in  any  state  or  territory  of  the  United  States 
or  in  Alaska  or  in  the  District  of  Columbia,  shall  be  subject  to 
pay  annually  a  special  excise  tax  with  respect  to  the  carrying  on 
or  doing  business  by  such  corporation,  joint  stock  company  or  as- 
sociation, or  insurance  company,  equivalent  to  one  per  centum 
upon  the  entire  net  income  over  and  above  five  thousand  dol- 
lars received  by  it  from  all  sources  during  such  year,  exclusive 
of  amounts  received  by  it  as  dividends  upon  stock  of  other  cor- 
porations, joint  stock  companies  or  associations,  or  insurance 
companies,  subject  to  the  tax  hereby  imposed,  or  if  organized 
under  the  laws  of  any  foreign  country,  upon  the  amount  of  net 
income  over  and  above  five  thousand  dollars  received  by  it  from 
business  transacted  and  capital  invested  within  the  United  States 
and  its  territories,  Alaska,  and  the  District  of  Columbia  during 
such  year,  exclusive  of  amounts  so  received  by  it  as  dividends 
upon  stock  of  other  corporations,  joint  stock  companies  or  asso- 
ciations, or  insurance  companies,  subject  to  the  tax  hereby  im- 
posed :  Provided,  however,  That  nothing  in  this  section  con- 
tained shall  apply  to  labor,  agricultural  or  horticultural  organi- 
zations, or  to  fraternal  beneficiary  societies,  orders,  or  associa- 


Corporation  Tax  Act.  543 

tions  operating  under  the  lodge  system,  and  providing  for  the 
payment  of  life,  sick,  accident,  and  other  benefits  to  the  mem- 
bers of  such  societies,  orders,  or  associations,  and  dependents  of 
such  members,  nor  to  domestic  building  and  loan  associations, 
organized  and  operated  exclusively  for  religious,  charitable,  or 
educational  purposes,  no  part  of  the  net  income  of  which  inures 
to  the  benefit  of  any  private  stockholder  or  individual. 

Second.  Such  net  income  shall  be  ascertained  by  deducting 
from  the  gross  amount  of  the  income  of  such  corporations,  joint 
stock  company  or  association,  or  insurance  company,  received 
within  the  year  from  all  sources,  (first)  all  the  ordinary  and 
necesasry  expenses  actually  paid  within  the  year  out  of  income 
in  the  maintenance  and  operation  of  its  business  and  properties, 
including  all  charges  such  as  rentals  or  franchise  payments,  re- 
quired to  be  made  as  a  condition  to  the  continued  use  or  posses- 
sion of  property;  (second)  all  losses  actually  sustained  within 
the  year  and  not  compensated  by  insurance  or  otherwise,  includ- 
ing a  reasonable  allowance  for  depreciation  of  property,  if  any, 
and  in  the  case  of  insurance  companies  the  sums  other  than  divi- 
dends, paid  within  the  year  on  policy  and  annuity  contracts  and 
the  net  addition,  if  any,  required  by  law  to  be  made  within  the 
year  to  reserve  funds:  (third)  interest  actually  paid  within  the 
year  on  its  bonded  or  other  indebtedness  to  an  amount  of  such 
bonded  and  other  indebtedness  not  exceeding  the  paid-up  capi- 
tal stock  of  such  corporation,  joint  stock  company  or  association, 
or  insurance  company,  outstanding  at  the  close  of  the  year,  and 
in  the  case  of  a  bank,  banking  association  or  trust  company,  all 
interest  actually  paid  by  it  within  the  year  on  deposits;  (fourth) 
all  sums  paid  by  it  within  the  year  for  taxes  imposed  under  the 
authority  of  the  United  States  or  any  state  or  territory  thereof, 
or  imposed  by  the  government  of  any  foreign  countrj^  as  a  con- 
dition to  carrying  on  business  therein ;  (fifth)  all  amounts  re- 
ceived by  it  within  the  year  as  dividends  upon  stock  or  other 
corporations,  joint  stock  companies  or  associations,  or  insurance 
companies,  subject  to  the  tax  hereby  imposed:  Provided,  That 
in  the  case  of  a  corporation,  joint  stock  company  or  association, 
or  insurance  company,  organized  under  the  laws  of  a  foreign 
country,  such  net  income  shall  be  ascertained  by  deducting  from 
the  gross  amount  of  its  income  received  within  the  year  from 
business  transacted  and  capital  invested  within  the  United  States 
and  any  of  its  territories,  Alaska,  and  the  District  of  Columbia, 


544  Corporation  Tax  Act. 

(first)  all  the  ordinary  and  necessary  expenses  actually  paid 
within  the  year  out  of  earnings  in  the  maintenance  and  opera- 
tion of  its  business  and  property  within  the  United  States  and 
its  territories,  Alaska,  and  the  District  of  Columbia,  including 
all  charges  such  as  rentals  or  franchise  pajnnents  required  to  be 
made  as  a  condition  to  the  continued  use  or  possession  of  prop- 
erty; (second)  all  losses  actually  sustained  within  the  year  in 
business  conducted  by  it  within  the  United  States  or  its  terri- 
tories, Alaska,  or  the  District  of  Columbia  not  compensated  by 
insurance  or  otherwise,  including  a  reasonable  allowance  for  de- 
preciation of  property,  if  any,  and  in  the  case  of  insurance  com- 
panies the  sums  other  than  dividends,  paid  within  the  year  on 
policy  and  annuity  contracts  and  the  net  addition,  if  any,  re- 
quired by  law  to  be  made  within  the  year  to  reserve  funds; 
(third)  interest  actually  paid  within  the  year  on  its  bonded  or 
other  indebtedness  to  an  amount  of  such  bonded  and  other  in- 
debtedness, not  exceeding  the  proportion  of  its  paid-up  capital 
stock  outstanding  at  the  close  of  the  year  which  the  gross  amount 
of  its  income  for  the  year  from  business  transacted  and  capital 
invested  within  the  United  States  and  any  of  its  territories, 
Alaska,  and  the  District  of  Columbia  bears  to  the  gross  amount 
of  its  income  derived  from  all  sources  within  and  without  the 
United  States;  (fourth)  the  sums  paid  by  it  within  the  year  for 
taxes  imposed  under  the  authority  of  the  United  States  or  of  any 
state  or  territory  thereof;  (fifth)  all  amoiuits  received  by  it 
within  the  year  as  dividends  upon  stock  of  other  corporations, 
joint  stock  companies  or  associations,  and  insurance  companies, 
subject  to  the  tax  hereby  imposed.  In  the  case  af  assessment  in- 
surance companies  the  actual  deposit  of  sums  with  state  or  ter- 
ritorial officers,  pursuant  to  law,  as  additions  to  guaranty  or  re- 
serve funds  shall  be  treated  as  being  payments  required  b^^  law 
or  reserve  funds. 

Third.  There  shall  be  deducted  from  the  amount  of  the  net 
income  of  each  of  such  corporations,  joint  stock  companies  or  as- 
sociations, or  insurance  companies,  ascertained  as  provided  in 
the  foregoing  paragraphs  of  this  section,  the  sum  of  five  thou- 
sand dollars,  and  said  tax  shall  be  computed  upon  the  remainder 
of  said  net  income  of  such  corporation,  joint  stock  company  or 
association,  or  insurance  company,  for  the  year  ending  Decem- 
ber thirty-first,  nineteen  hundred  and  nine,  and  for  each  cal- 
endar year  thereafter;  and  on  or  before  the  first  day  of  March, 


Corporation  Tax  Act.  545 

nineteen  hundred  and  ten,  and  the  first  day  of  March  in  each 
year  thereafter,  a  true  and  accurate  return  under  oath  or  af- 
firmation of  its  president,  vice-president,  or  other  principal  of- 
ficer, and  its  treasurer  or  assistant  treasurer,  shall  be  made  by 
each  of  the  corporations,  joint  stock  companies  or  associations, 
and  insurance  companies,  subject  to  the  tax  imposed  by  this 
section,  to  the  collector  of  internal  revenue  for  the  district  in 
which  such  corporation,  joint  stock  company  or  association,  or 
insurance  company,  has  its  principal  place  of  business,  or,  in  the 
case  of  a  corporation,  joint  stock  company  or  association,  or  in- 
surance company,  organized  imder  the  laws  of  a  foreign  country, 
in  the  place  where  its  principal  business  is  carried  on  within  the 
United  States,  in  such  form  as  the  Commissioner  of  Internal 
Revenue,  with  the  approval  of  the  Secretary  of  the  Treasury, 
shall  prescribe,  setting  forth,  (first)  the  total  amount  of  the 
paid-up  capital  stock  of  such  corporation,  joint  stock  company  or 
association,  or  insurance  company,  outstanding  at  the  close  of 
the  year;  (second)  the  total  amomit  of  the  bonded  and  other  in- 
debtedness of  such  corporation,  joint  stock  company  or  associa- 
tion, or  insurance  company  at  the  close  of  the  year:  (third)  the 
gross  amount  of  the  income  of  such  corporation,  joint  stock 
company  or  association,  or  insurance  company,  received  during 
such  year  from  all  sources  and  if  organized  under  the  laws  of 
a  foreign  country  the  gross  amoimt  of  its  income  received  within 
the  year  from  business  transacted  and  capital  invested  within 
the  United  States  and  any  of  its  territories,  Alaska,  and  the 
District  of  Columbia ;  also  the  amount  received  by  such  corpora- 
tion, joint  stock  company  or  association,  or  insurance  company, 
within  the  year  by  way  of  dividends  upon  stock  of  other  corpora- 
tions, joint  stock  companies  or  associations,  or  insurance  com- 
panies, subject  to  the  tax  imposed  by  this  section :  (fourth)  the 
total  amount  of  all  the  ordinary  and  necessary  expenses  actually 
paid  out  of  earnings  in  the  maintenance  and  operation  of  the 
business  and  properties  of  such  corporations,  joint  stock  company 
or  association,  or  insurance  company,  ^^^thin  the  year,  stating 
separately  all  charges  such  as  rentals  or  franchise  payments  re- 
quired to  be  made  as  a  condition  to  the  continued  use  or  pos- 
session of  property,  and  if  organized  under  the  laws  of  a  foreign 
country  the  amount  so  paid  in  the  maintenance  and  operation 
of  its  business  within  the  United  States  and  its  territories, 
Alaska,  and  the  District  of  Columbia;  (fifth)  the  total  amount  of 


546  Corporation  Tax  Act. 

all  losses  actually  sustained  during  the  year  and  not  compen- 
sated by  insurance  or  otherwise,  stating  separately  any  amounts 
allowed  for  depreciation  of  property,  and  in  the  case  of  insurance 
companies  the  sums  other  than  dividends,  paid  within  the  year 
on  policy  and  annuity  contracts  and  the  net  addition,  if  any,  re- 
quired by  law  to  be  made  within  the  year  to  reserve  funds ;  and 
in  the  case  of  a  corporation,  joint  stock  company  or  association, 
or  insurance  companj%  organized  under  the  laws  of  a  foreign 
coimtry,  all  losses  actually  sustained  by  it  during  the  year  in 
business  conducted  by  it  within  the  United  States  or  its  terri- 
tories, Alaska,  and  the  District  of  Columbia,  not  compensated 
by  insurance  or  otherwise,  stating  separately  any  amounts  al- 
lowed for  depreciation  of  property,  and  in  the  case  of  insurance 
companies  the  sums  other  than  dividends,  paid  within  the  year 
on  policy  and  annuity  contracts  and  the  net  addition,  if  any,  re- 
quired by  law  to  be  made  within  the  year  to  reserve  fund ;  (sixth) 
the  amount  of  interest  actually  paid  within  the  year  on  its  bond- 
ed or  other  indebtedness  to  an  amount  of  such  bonded  and  other 
indebtedness  not  exceeding  the  paid  up  capital  stock  of  such  cor- 
poration, joint  stock  company  or  association,  or  insurance  com- 
pany, out-standing  at  the  close  of  the  year,  and  in  the  case  of 
a  bank,  banking  association  or  trust  company,  stating  separately 
all  interest  paid  by  it  within  the  year  in  deposits;  or  in  case 
of  a  corporation,  joint  stock  company  or  association,  or  insurance 
company,  organized  under  the  laws  of  a  foreign  country,  interest 
so  paid  on  its  bonded  or  other  indebtedness  to  an  amoimt  of 
such  bonded  and  other  indebtedness  not  exceeding  the  propor- 
tion of  its  paid-up  capital  stock  outstanding  at  the  close  of  the 
year,  which  the  gross  amount  of  its  income  for  the  year  from 
business  transacted  and  capital  invested  within  the  United  States 
and  any  of  its  territories,  Alaska,  and  the  District  of  Columbia, 
bears  to  the  gross  amount  of  its  income  derived  from  all  sources 
within  and  without  the  United  States;  (seventh)  the  amount 
paid  by  it  within  the  year  for  taxes  imposed  under  the  authority 
of  the  United  States  or  any  state  or  territory  thereof,  and  sep- 
arately the  amount  so  paid  by  it  for  taxes  imposed  by  the  gov- 
ernment of  any  foreign  country  as  a  condition  to  carry  on  busi- 
ness therein;  (eighth)  the  net  income  of  such  corporation,  joint 
stock  company  or  association,  or  insurance  company,  after  mak- 
ing the  deductions  in  this  section  authorized.    All  such  returns 


CoRPORxVTiON  Tax  Act.  547 

shall  as  received  be  transmitted  forthwith  by  the  collector  to  the 
Commissioner  of  Internal  Revenue. 

Fourth.  Whenever  evidence  shall  be  produced  before  the 
Commissioner  of  Internal  Revenue  which  in  the  opinion  of  the 
commissioner  justifies  the  belief  that  the  return  made  by  any 
corporation,  joint  stock  company  or  association,  or  insurance 
company,  is  incorrect,  or  whenever  any  collector  shall  report  to 
the  Commissioner  of  Internal  Revenue  that  any  corporation,  joint 
stock  company  or  association,  or  insurance  company,  has  failed 
to  make  a  return  as  required  by  law,  the  Commissioner  of  In- 
ternal Revenue  may  require  from  the  corporation,  joint  stock 
company  or  association,  or  insurance  company  making  such  re- 
turn, such  further  information  with  reference  to  its  capital,  in- 
come, losses,  and  expenditures  as  he  may  deem  expedient;  and 
the  Commissioner  of  Internal  Revenue,  for  the  purpose  of  ascer- 
taining the  correctness  of  such  return  or  for  the  purpose  of 
making  a  return  where  none  has  been  made,  is  hereby  author- 
ized, by  any  regularly  appointed  revenue  agent  specially  desig- 
nated by  him  for  that  purpose,  to  examine  any  books  and  papers 
bearing  upon  the  matters  required  to  be  included  in  the  return 
of  such  corporation,  joint  stock  company  or  association,  or  in- 
surance company,  and  to  require  the  attendance  of  any  officer 
or  employee  of  such  corporation,  joint  stock  company  or  asso- 
ciation, or  insurance  com^pany,  and  to  take  his  testimony  with 
reference  to  the  matter  required  by  law  to  be  included  in  such 
return,  with  power  to  administer  oaths  to  such  person  or  per- 
sons; and  the  Commissioner  of  Internal  Revenue  may  also  in- 
voke the  aid  of  any  court  of  the  United  States  having  jurisdic- 
tion to  require  the  attendance  of  such  officers  or  employees  and 
the  production  of  such  books  and  papers.  Upon  the  informa- 
tion so  acquired  the  Commissioner  of  Internal  Revenue  may 
amend  any  return  or  make  a  return  where  none  has  been  made. 
All  proceedings  taken  by  the  Commissioner  of  Internal  Revenue 
under  the  provisions  of  this  section  shall  be  subject  to  the  ap- 
proval of  the  Secretary  of  the  Treasury. 

Fifth.  All  returns  shall  be  retained  by  the  Commissioner  of 
Internal  Revenue,  M'ho  shall  make  assessments  thereon ;  and  in 
case  of  any  return  made  with  false  or  fraudulent  intent,  he  shall 
add  one  hundred  per  centum  of  such  tax,  and  in  case  of  a  re- 
fusal or  neglect  to  make  a  return  or  to  verify  the  same  as  afore- 
said he  shall  add  fifty  per  centum  of  such  tax.    In  case  of  neglect 


548  Corporation  Tax  xVct. 

occasioned  by  the  sickness  or  absence  of  an  officer  of  such  cor- 
poration, joint  stock  company  or  association,  or  insurance  com- 
pany, required  to  make  said  return,  or  for  other  sufficient  rea- 
son, the  collector  maj"  allow  such  further  time  for  making  and 
delivering  such  return  as  he  may  deem  necessary,  not  exceeding 
thirty  days.  The  amoimt  so  added  to  the  tax  shall  be  collected 
at  the  same  time  and  in  the  same  manner  as  the  tax  originally 
assessed  unless  the  refusal,  neglect,  or  falsity  is  discovered  after 
the  date  for  payment  of  said  taxes,  in  which  case  the  amount 
so  added  shall  be  paid  by  the  delinquent  corporation,  joint  stock 
company,  or  association,  or  insurance  company,  immediately 
upon  notice  given  by  the  collector.  All  assessments  shall  be  made 
and  the  several  corporations,  joint  stock  companies  or  associa- 
tions, or  insurance  companies,  shall  be  notified  of  the  amount 
for  which  they  are  respectively  liable  on  or  before  the  first  day 
of  June  of  each  successive  year,  and  said  assessment  shall  be 
paid  on  or  before  the  thirtieth  day  of  June,  except  in  cases  of 
refusal  or  neglect  to  make  such  return,  and  in  eases  of  false  or 
fraudulent  returns,  in  which  cases  the  Commissioner  of  Internal 
Revenue  shall,  upon  the  discovery  thereof,  at  any  time  within 
three  years  after  said  return  is  due,  make  a  return  upon  in- 
formation obtained  as  above  provided  for,  and  the  assessment 
made  by  the  Commissioner  of  Internal  Revenue  thereon  shall 
be  paid  by  such  corporation,  joint  stock  company  or  association, 
or  insurance  company  immediately  upon  notification  of  the 
amount  of  such  assessment ;  and  to  any  sum  or  sums  due  and 
impaid  after  the  thirtieth  day  of  June  in  any  year,  and  for  ten 
days  after  notice  and  demand  thereof  by  the  collector,  there  shall 
be  added  the  sum  of  five  per  centum  on  the  amount  of  tax  un- 
paid and  interest  at  the  rate  of  one  per  centum  per  month  upon 
said  tax  from  the  time  the  same  becomes  due. 

Sixth.  When  the  assessment  shall  be  made,  as  provided  in 
this  section,  the  returns,  together  with  any  corrections  thereof 
which  may  have  been  made  hy  the  commissioner,  shall  be  filed 
in  the  office  of  the  Commissioner  of  Internal  Revenue  and  shall 
constitute  public  records  and  be  open  to  inspection  as  such. 

Seventh.  It  shall  be  unlawful  for  any  collector,  deputy  col- 
lector, agent,  clerk,  or  other  officer  or  employee  of  the  United 
States  to  divulge  or  make  known  in  any  manner  whatever  not 
provided  by  law  to  any  person  any  information  obtained  by  him 
in  the  discharge  of  his  official  duty,  or  to  divulge  or  make  kno^\Ti 


Corporation  Tax  Act.  549 

in  any  manner  not  provided  by  law  any  document  received,  evi- 
dence taken,  or  report  made  imder  this  section  except  upon  the 
special  direction  of  the  President ;  and  any  offense  against  the 
foregoing  provision  shall  be  a  misdemeanor  and  be  punished  by 
a  fine  not  exceeding  one  thousand  dollars,  or  by  imprisonment 
not  exceeding  one  year,  or  both,  at  the  discretion  of  the  court. 

Eighth.  If  any  of  the  corporations,  joint  stock  companies  or 
associations,  or  insurance  companies,  aforesaid,  shall  refuse  or 
neglect  to  make  a  return  at  the  time  or  times  hereinbefore  speci- 
fied in  each  j'ear,  or  shall  render  a  false  or  fraudulent  return, 
such  corporation,  joint  stock  company  or  association,  or  insur- 
ance company  shall  be  liable  to  a  penalty  of  not  less  than  one 
thousand  dollars  and  not  exceeding  ten  thousand  dollars. 

Any  person  authorized  by  law  to  make,  render,  sign,  or  verify 
any  return  who  makes  any  false  or  fraudulent  return,  or  state- 
ment, with  intent  to  defeat  or  evade  the  assessment  required  by 
this  section  to  be  made,  shall  be  guilty  of  a  misdemeanor,  and 
shall  be  fined  not  exceeding  one  thousand  dollars  or  be  impris- 
oned not  exceeding  one  year,  or  both,  at  the  discretion  of  the 
court,  with  the  costs  of  prosecution. 

All  laws  relating  to  the  collection,  remission,  and  refund  of 
internal  revenue  taxes,  so  far  as  applicable  to  and  not  incon- 
sistent with  the  provisions  of  this  section,  are  hereby  extended 
and  made  applicable  to  the  tax  imposed  by  this  section. 

Jurisdiction  is  hereby  conferred  upon  the  circuit  and  district 
courts  of  the  United  States  for  the  district  within  which  any 
person  summonded  under  this  section  to  appear  to  testify  or  to 
produce  books,  as  aforesaid,  shall  reside,  to  compel  such  attend- 
ance, production  of  books,  and  testimony  by  appropriate  process. 


INDEX. 


(Eeferences  are  to  pages.) 


ACCIDENTS. 

Carriers  must  make  report  of,  527. 
ACCOUNTS. 

Carriers  must  keep  according  to  method  prescribed  by  Interstate  Com- 
merce Commission,  481,  484,  485. 
ACT  TO  PREVENT  CRUELTY  TO  ANIMALS. 

Known  as  the  twenty-eight  hour  law,   501-504. 

Sec.   1,  Time  for  feeding  and  unloading  animals  prescribed,  501,  502. 

Sec.  1,  Time  may  be  extended  upon  written  request  of  owner,  501,  502. 

Sec.  1,  Sheep  need  not  be  unloaded  in  nighttime,  502. 

Sec.  2,  Feeding,  at  expense  of  owner,  503. 

Sec.  3,  Penalties  for  violating,  503. 

Sec.  3,  Not  apply  when  animals  have  proper  food  and  opportunity  to 
rest,  503. 

Sec.  3,  Penalty  for  each  shipment,  504. 

See.  3,  "Knowingly  and  wilfully"  defined,  351,  502,  504. 
ACT  TO  REGULATE  COMMERCE. 

Constitutional,  77-82. 

Reasons  for,  83,  84. 

What  carriers  included  under,  84,  85,  362-3G8. 

What  transportation  included  under,  86-90,  368,  369. 

Carriers'  duties  under,  85,  86,  146,  147,  369,  370-378,  401,  413,  418. 

Courts  of  United  States  may  enforce  by  mandamus,  92,  93,  475,  485, 
491,  492,  495. 

Purpose  of  to  promote  trade,  108,  109. 

Scope  of,  86,  362. 

Modeled  on  English  Act,  145,  146,  147,  383,  391,  392,  404,  411. 

Penalties  for  violation  of,  428-431,  442-446,  485. 

Cumulative  and  not  exclusive  of  pre-existing  remedies,  486,  489. 

Discrimination,  what  illegal,  147-214,  383-391. 

Preferences,  what  prohibited,  152-156,  391-403. 
ACT    TO   REGULATE    COMMERCE   ANNOTATED. 

Sec.  1,  i.:ir.  1,  Scope  of  act,  362-368. 

Sec.  1,  par.  1,  Proviso  to,  not  applicable  to  intrastate  commerce,  368. 

551 


552  Index, 

(References  are  to  pages.) 

ACT  TO  REGULATE  COMMERCE  ANNOTATED— Conitniie<?. 

Sec.  1,  par.  2,  Definitions,  368,  369. 

Sec.  1,  par.  2,  continued.  Duties  of  carriers  to  furnish  transportation 
and  establish  through  routes,  369,  370. 

Sec.  1,  par.  3,  Charges  must  be  reasonable,  370-378. 

Sec.  1,  par.  4,  Free  service,  378-381. 

Sec.  1,  par.  5,  Commodities  clause,  381,  382. 

Sec.  1,  par.  6,  Switch  connections,  382,  383. 

Sec.  2,  Unjust  discrimination  defined  and  prohibited,  383-391. 

Sec.  3,  par.  1,  Undue  and  unreasonable  preference  prohibited,  391-401. 

Sec.  3,  par.  2,  Reasonable  and  equal  facilities  for  interchange  of 
traffic  required,  401-403. 

Sec.  4,  Long  and  short  haul  clause,  403-411. 

Sec.  5,  pooling  freights  prohibited,  411-413. 

Sec.  6,  par.  1,  Schedules  of  rates  to  be  filed,  413-418. 

Sec.  6,  par.  2,  Regulations  as  to  printing  and  filing  tariffs  of  rates 
through  foreign  countries,  418. 

Sec.  6,  par.  3,  Changes  in  tariffs  must  not  be  made  without  notice, 
418,  419. 

Sec.  6,  par.  4,  Names  of  parties  to  tariffs  must  be  given,  419. 

Sec.  6,  par.  5,  Contracts  must  be  filed,  419,  420. 

Sec.  6,  par.  6,  Commission  may  prescribe  form  of  schedules,  420. 

Sec.  6,  par.  7,  Carriers  shall  not  participate  in  transportation  with- 
out filing  schedules  of  rates,  420-427. 

Sec.  6,  par.  8,  Military  traffic,  427. 

Par.  1,  Sec.  1,  Elkins  Act.  Corporations  may  be  guilty  as  indi- 
viduals, 427,  428. 

Par.  1,  Sec.  1,  Elkins  Act,  continued.  Punishment  for  rebating, 
428-431. 

Par.  2,  Sec.  2,  Elkins  Act.     When  agent  binds  carrier,  431. 

Par.  2,  Sec.  2,  Elkins  Act,  continued.  Carrier  bound  by  rate  filed  or 
participated  in  by  it,  432. 

Amendment  to  section  1,  Elkins  Act.     Forfeiture,  432,  433. 

Section  7,  Illegal  to  combine  or  contract  to  prevent  continuous  car- 
riage, 433. 

Section  8,  Damages  for  violating  act,  433. 

Section  9,  Damages,  how  recovered,  434-442, 

Sec.  10,  par.  1,  Penalties  for  violating  act,  442-444. 

Sec.  10,  par.  2,  Penalties  for  false  billing,  classification  and  weigh- 
ing, 444. 

Sec.  10,  par.  3,  Penalties  against  shipper,  444,  445. 

Sec.  10,  par.  4,  Penalties  for  inducing  discrimination,  445,  446. 

Sec.   11,  Appointment  and  terms  of  commissioners,  446. 

Sec.  12,  pars.  1  and  2,  Powers  and  duties  of  commission,  447-450. 

Sec.  12,  par.  3,  Punishment  of  witnesses  for  failing  to  testify,  450, 
451. 

Sec.  12,  par.  4,  Testimony  may  be  taken  by  deposition,  451,  452, 

Sec,   13,  Who  may  file  complaints  before  Commission,  452-456, 


Index.  553 

(Eeferences  are  to  pages.) 

ACT  TO  REGULATE  COMMEECE  ANNOTATED— Continued. 

Sec.  14,  Eeports  of  commissioners,  456-458. 

Sec.  15,  par.  1,  Power  to  prescribe  rates,  rules  and  practices,  458,  461. 

Sec.  15,  par.  1,  continued,  When  orders  of  commission  take  effect  and 
how  long  remain  in  force,  462. 

Sec.  15,  par.  1,  continued.  May  fix  division  of  joint  rate,  462. 

Sec.  15,  par.  2,  Through  routes  and  joint  rates,  463. 

Sec.  15,  par.  3,  Charges  for  instrumentalities  furnished  by  shipper, 
463. 

Sec.  15,  par.  4,  Enumeration  of  powers  not  exclusive,  463. 

Sec.  16,  par.  1,  Award  of  damages,  how  made  by  commission,  464-472. 

Sec.  16,  par.  2,  Award  of  damages,  how  enforced,  472. 

Sec.  16,  par.  2,  continued.  Limitation  on  actions  for  damages,  472, 
473. 

Sec.  16,  par.  3,  Parties  to  suits  on  awards  of  damages,  474. 

Sec.  16,  par.  4,  Service  of  orders  of  the  commission,  474. 

Sec.  16,  par.  5,  Commission  may  suspend  or  modify  its  orders,  474. 

Sec.  16,  pars.  6,  7  and  8,  Punishment  for  disobedience  to  orders  of 
commission,  474. 

Sec.  16,  par.  9,  "Who  to  prosecute  for  violation  of  orders,  474-475. 

Sec.  16,  par,  10,  Courts  may  enforce  obedience  to  orders  of  commis- 
sion, 475. 

Sec.  16,  par.  11,  Appeals  to  Supreme  Court,  475. 

Sec.  16,  par.  12,  Venue  of  suits  to  set  aside  orders  of  commission,  475, 
476. 

Sec.  16,  par.  12  continued.  Suits  against  commission,  to  be  expedited, 
476,  477. 

Sec.  16,  par.  12,  Proviso,  limitation  on  rights  of  courts  to  enjoin 
orders  of  commission,  477. 

See.  16,  par.  13,  Schedules,  etc.,  evidence,  477. 

See.  16-a,  Eehearings  by  the  commission,  478,  479. 

Sec.  17,  Procedure  in  causes  before  the  commission,  479,  480. 

Sec.  18,  Salaries  and  expenses  of  the  commission,  480. 

See.   19,  Principal  office  of  the  commission,  481. 

Sec.  20,  pars.  1  to  4,  Eeports  to  be  made  by  carriers  and  what  they 
shall  contain,  481-484. 

Sec.  20,  par.  5,  Form  of  keeping  carriers'  accounts,  484. 

Sec.  20,  pars.  6  and  7,  Penalties  for  failure  to  keep  proper  accounts, 
485. 

Sec.  20,  par.  8,  Penalty  for  an  examiner  divulging  information  re- 
ceived as  such,  485. 

Sec.  20,  par.  9,  Who  may  enforce  these  provisions,  485. 

Sec.  20,  par.  10,  Commission  may  employ  agents  or  examiners,  486. 

Sec.  20,  pars.  11  and  12,  Initial  carrier  liable  for  loss  caused  by  con- 
necting carriers,  as  well  as  for  that  caused  by  itself,  486. 

Sec.  21,  Eeports  by  commission  to  Congress,  487. 

Sec.  22,  par,  1,  Eeduced  or  free  transportation,  487,  488. 

Sec.  22,  par.  2,  Existing  remedies  not  altered  or  abridged,  489. 


554  Index. 

(Eeferences  are  to  pages.) 

ACT  TO  EEGULATE  COMMERCE  ANNOTATED— Coniinwed. 

Sec.   22,   Proviso,  Interchangeable  mileage  tickets,  490,  491. 

Sec.  23,  Discrimination,  how  prevented,  491,  492. 

Sec.  24,  Number,  term,  salary,  etc.,  of  commissioners,  493. 

Section  9,  Hepburn  Act,  Testimony  laws  remain  applicable  to  amended 
act,  493. 

Section  10,  Hepburn  Act,  Repealing  clause,  493,  494. 

Joint  Resolution  of  Congress,  Effective  date  Hepburn  Act,  494. 

Section  2,  Elkins  Act,  Parties,  494,  495. 

Section   3,   Elkins  Act,  part   1,  Equitable  proceedings  to   prevent   dis- 
crimination, 495,  496. 

Section  3,  Elkins  Act,  part  2,  Immunity  of  witnesses  testifying,  496, 

Section  3,  Elkins  Act,  part  3,  Suits  to  be  expedited,  496,  497. 

Sections  4  and  5,  Elkins  Act,  Eifect  of  repealing  clause,  497. 

Expediting  Act,  497,  498,  499. 

Compulsory  attendance  of  witnesses,  499,  500. 
ACTS  OF  CONGRESS. 

Indirectly  affecting  interstate  commerce,  350-358. 
AGENT. 

Act  binds  corporation,  when,  431,  432. 
AMENDMENTS. 

To  complaints  before  Interstate  Commerce  Commission,  248. 
ANIMALS,  LAW  TO  PREVENT  CRUELTY  TO. 

Act  constitutional,  351,  502. 

Not    to   be    confined   while    being    transj^orted    longer    than    28    hours, 
351,  501,  502. 

May,  by  written  request  of  owner,  extend  time  to  36  hours,  501,  502. 

Sheep  need  not  be  unloaded  at  night,  502. 

Feeding   at    owner's   expense,    503. 

Carrier  given  a  lien  for  feed,  351,  503. 

Penalties  for  violating,  503. 

Penalties,  suit  for  a  civil  action,  351,  504. 

Penalty  for  each  shipment,  351,  504. 

"Knowingly  and  wilfully"  used  in  act  defined,  351,  502,  504. 

Not  apply  where  animals  have  proper  food  and  opportunity  to  rest, 
503. 

Law  prior  to  1906,  350. 
ANTI-TRUST   LAW. 

Violation  of,  considered  in  determining  whether  or  not  a  rate  is  rea- 
sonable, 105-113,  351. 

Applies  to  carriers,  351,  510. 

Interstate  Commerce  Commission  no  power  to  enforce.  111. 

What  combinations  included  in  prohibition  of,  351,  352,  505. 

Annotated,  505  to  520. 

Penalties  for  violating,  505,  514. 

Monopolies  prohibited,  514.  • 


Index.  555 

(Eeferences  are  to  pages.) 

ANTI-TKUST  JjAW— Continued. 

Territories,  law  applies  to,  515. 
Enjoin  violations  of,  courts  may,  515. 
Parties  to  suits  for  violating,  517. 

Subpoenas  may  be  served  on  parties  in  any  district,  517. 
Property  seized  and  forfeited,  when,  518. 
Damages   for   violating,   measure   of,    518. 
Allegations,  what  required  in  suit  for  damages,  518,  519. 
Attorneys'  fees  as  part  of  recovery  in  suits  for  damages,  518,  519. 
* '  Person ' '  includes  corporation,  520. 

Limitation,  laws  of  state  where  suit  filed  applies  to   suits  for   dam- 
ages, 520. 
Known  as  "Sherman  Anti-Trust  Law,"  351,  505. 
Act  1894,  521,  522. 

APPEALS. 

May  be  taken  direct  to  Supreme  Court  from  any  action  on  a  petition 

to  enforce  obedience  to  order  of  commission,  475. 
Such  appeals  given  priority  of  hearing  in  Supreme  Court,  475,  477. 
Such  appeals  do  not  suspend  order  appealed  from,  475. 
Appeals  direct  to  Supreme  Court  in  suits  to  enjoin  or  set  aside  order 

of  commission,  477. 
Such  appeals  may  be  taken  from  an  interlocutory  order   granting  or 

continuing  an  injunction,  477. 
Such  appeals  given  priority  of  hearing  in  Supreme  Court,  477. 
Must  be  taken  within  thirty  days,  477. 

AEBITRATION  ACT. 
Copied,  535  to  542. 
Discussed,  356. 
Persuasive  only,  356. 
Definition  of  terms  used  in,  535. 
Applies  to  what  controversies,  536. 
Board  of  arbitration,  how  chosen,  536. 
Time  when  hearings  begin,  537. 
Award,  how  certified,  537. 
Parties  shall  execute  awards,  537. 
Award  in  force  one  year,  538. 

Appeal  may  be  taken  to  Circuit  Court  of  Appeals,  538. 
Arbitrators  may  administer  oaths,  539. 
How  the  agreement  to  arbitrate  shall  be  signed,  539. 
Status  maintained  pending  arbitration,  539. 
Incorporation    of    labor    organizations    to    contain    certain    provisions, 

540. 
Duties  of  receivers  appointed  by  Federal  courts,  540. 
Blacklisting  prohibited,  541. 
Compensation  of  board  of  arbitrators,  541. 


556  Index. 

(Eeferences  are  to  pages.) 
ASH  PAN  ACT. 

Effective  January   1,  1910,  530. 

Locomotives  must  be  equipped  with  an  ash  pan  which  can  be  dumpea 

without  going  thereunder,  530. 
Penalty  for  violating,  530. 

Interstate  Commerce  Commission  to  enforce,  530. 
"Common  carrier"  defined,  530. 

ASSUMED  RISK. 

Eule  as  to  under  safety  appliance  acts,  525. 
Eule  under  Employers'  Liability  Act,  534. 

ATTORNEYS. 

Attorney-General,  duties  of  under  act  to  regulate  commerce,  474,  477, 

485. 
District,  duties  of,  474. 
Special,  may  be  employed,  237,  474. 
Fees  of,  when  may  be  recovered,  433. 
Fees   of,   not   recoverable   in   suits   against   initial   carrier   for   loss   or 

damage,  267. 
Fees  of,  may  be  recovered  in  suits  for  damages  under  anti-trust  act, 
518,  519. 

B 

BASING  POINT. 

System  of,  rate  making  based  on  described,  123,  208. 

Disapproved,  123,  124,  125,  209. 

System  may  cause  illegal  discrimination,  208-210. 

BILLING. 

Freight  must  be  billed  without  discrimination,  193,  444. 

BLACKLISTING. 
Prohibited,  541. 

BRIEFS. 

Eule  as  to  filing  with  Interstate  Commerce  Commission,  251,  252. 
BULKED  SHIPMENTS. 

Legal  under  English  law,  174. 

Held  to  be  legal  in  United  States  by  Interstate   Commerce  Commis- 
sion,  174,  388,  436. 
Commission  not  sustained  by  circuit  judges,  174,  175. 
Believed  to  be  legal,  175. 

BUSINESS  CONDITIONS. 

Effect  of  on  rate  making,  120-122. 
Prosperity  no  ground  for  increasing  rates,  120-122. 
May,  however,  restore  rates  that  have  declined  under  commercial  con- 
ditions, 122. 


Index.  557 

(References  are  to  pages.) 

c 

CANADIAN   LAW. 

Pooling  not  illegal  under,  but  leave  must  be  obtained  to  pool,  411. 
CAREIEES. 

Duties  of,  at  common  law,  75,  95,  142,  143,  144,  145. 

Duties  of,  under  act  to  regulate  commerce,  85,  86,  146,  147,  369,  370- 
378,  401,  413-418. 

What  carriers  included  in  act  to  regulate  commerce,  84,  85,  362-368. 

Local  carrier,  when  subject  to  such  act,  363,  368. 

Must  transport  at  reasonable  rates,  85,  86,  370-378. 

And  without  unjust  discrimination  or  undue  preference,  146,  147,  148, 
383,  391-401. 

May    not,    with    certain    exceptions,    transport    commodities    in    which 
they  are  interested,   203-211,  381,  382. 

Must   keep    accounts   as   prescribed   by   Interstate    Commerce    Commis- 
sion, 481-484,  485. 

Must  report  all  accidents,  527. 

Must  file  contracts  relating  to  transportation,  419,  420. 

Must  publish  tariffs  of  rates,  413-418,  420-427. 

Bound  by  when  filing  a  tariff  for  or  participating  in  a  through  rate, 
432. 

Must  specify  parties  to  tariffs,  419. 

Initial,  liable  for  loss  or  damage  caused  by  it  or  a  connecting  carrier, 
265-269,  486. 

Initial  carrier  not  liable  for  attorneys'  fees  in  suit  for  loss  or  dam- 
age, 267. 

Initial  carrier  may  contract   against  liability  for  loss  or  damage  not 
caused  by  it  or  by  a  connecting  carrier,  267-268. 

Common  carrier  defined,  368,  369,  530,  534. 

CAR  LOADS. 

A  car-load  rating  legal,  128-131,  171-173. 

Principle  of  giving  a  car-load  rating  generally  adopted,  128,  173,  174. 

Percentage  of  commodities  given  car-load  rating,  174. 

The   differential   between   rate   on   and   L.   C.   L.   must   be    reasonable, 

131,  174. 
Interstate  Commerce  Commission  not  inclined  to  compel  the  granting 

of  a  car-load  rating,  129,  174. 
Rule  as  to  car-load  rate  when  car-load  made  up  of  separate  parcels 

owned  by  different  persons,  174,  175,  436. 

CARS. 

Must  be  furnished  without  discrimination,  187,  383-391. 
Rules  for  distribution  of,  between  different  shippers,  186-193. 
Validity  of  state  laws  requiring  cars  to  be  furnished,  339,  340. 

CLAIMS  FOR  LOSS,  DAMAGE  OR  OVERCHARGE. 

State  laws  prescribing  penalties  for  failure  to  pay,  348,  349. 


558  Index. 

(Eeferences  are  to  pages.) 
CLASSIFICATION. 

Uniform  needed,  175,  178. 

Principles  of,  176-179. 

Different  described,  178. 

Official,  178. 

Southern,  178. 

Western,  178. 

Power  of  Interstate  Commerce  Commission   over,   178,  179. 

COAL. 

Entitled  to  a  relatively  low  rate,  107. 
COMMEECE. 

Discussed  only  in  its  relation  to  interstate  transportation,  76,  330. 

Power  of  Congress  over,  76. 

Power  of  Congress  to  regulate  interstate,  plenary,  77. 

Act  to  regulate,  constitutional,  77-83. 

COMMODITY  CLAUSE. 

Valid  as  construed,  78,  207,  381,  382. 

As  stated  by  Supreme  Court,  207. 

Evils  sought  to  be  remedied  by,  204-207. 

Construction    of,    by    Supreme    Court,    leaves    clause    of    little    or    no 

value,  208. 
Discussion  of,  by  Interstate  Commerce  Commission,  208. 
Illegal   before   statute   for   a   carrier   to   transport   commodities   owned 

by  it  at  less  than  published  rate,  207. 

COMMON  LAW. 

Duties  of  common  carriers  under,  75,  142. 

Discrimination  illegal  at,  76,  143,  145. 

Principles  of  control  in  interstate  transportation,  except  when  modi- 
fied by  act  of  Congress,  145,  439,  440. 

State  laws  limiting  or  enlarging,  347. 

Changed  to  make  initial  carrier  liable  for  loss  or  damage  caused  by 
a  common  carrier,  265-269,  486. 

COMPARISONS. 

Competent  to  make  in  determining  whether  or  not  a  rate  is  reasonable, 

127. 
The  greater   similarity   between   the   conditions   compared,   the   greater 

value  the  comparison,  128. 
Not  alone   sufficient  when  between   different   parts   of  the   country  to 

condemn  a  rate,  128. 

COMPETITION. 

The  existence  or  non-existence  of  competition  considered  in   determin- 
ing reasonableness  of  a  rate,  107-117,  351,  505-520. 
Favored  by  law,  108. 
Win  bring  charges  down  to  what  is  reasonable,  108. 


Index.  559 

(References  are  to  pages.) 

COMPETITION— ConiinwecZ. 

When   taken   into   account,   no   presumption   of   wrong   when   rate   ad- 
vanced, 110. 

Eate  as  result  of  suppression  of,  prima  facie  illegal,   110-117. 

Never  raises  rates,  115. 

Water  competition  discussed,  116,  117. 

Eail  competition   suppressed,   117. 

Market  competition  effective  in  determining  rates,  115. 

Does  not  justify  discrimination  against  individuals,  149,  150. 

May  relieve  from  rule  as  to  long  and  short  hauls,  172,  173. 

State  laws  prohibiting  svippression  of,  344. 
COMPLAINT   TO  INTEESTATE  COMMEECE   COMMISSION. 

Who  may  make,  452-456. 

Eules  as  to,  244,  246,  247,  480. 

Forms  of,  254,  255. 

Commission  may  act  without,  232-237. 

Can  not   comj^el   attendance  of  witness   unless   filed   or  unless  investi- 
gation might  become  the  subject  of,  235,  236,  237. 
CONGEESS. 

Power  over  interstate  commerce  plenary,  76,  77. 
CONTINUOUS  CAEEIAGE  OF  FEEIGHT. 

Contracts  and  combinations  to  prevent,  illegal,  433. 
CONTEIBUTOEY  NEGLIGENCE. 

Not  bar  a  recovery  for  damages  under  Employer's  Liability  Act,  534, 

Damages  to  be  diminished  when  employee  guilty  of,  534. 
CONSTITUTIONAL. 

Act  to  regulate  commerce  is,  78,  82. 

Twenty-eight  hour  law  is,  351. 

Safety  appliance  acts  are,  352. 

Employer's  Liability  Act  is,  354.* 

Corporation  tax  law  is,  356,  357,  358. 

COEPOEATIONS. 

May  be  convicted  of  a  criminal  offense,  213,  427,  428. 
Agents  bind,  when,  431,  432. 
Tax  act,  356,  357,  358,  542-549. 
COEPOEATION  TAX  ACT. 
Discussion  of,  356-358. 
Constitutional,  356-358. 
What  corporations  included,  542. 

Certain  organizations  and  fraternal  orders  excepted,  542. 
One  percentum  on  net  income  over  $5,000.00,  542. 
How  net  income  determined,  543,  544,  545,  546,  547 


*Since  this  book  has  boon  in  the  hands  of  tbo  priiifcr,  tlio  Sujiromo  Cnurt, 
in  Guiterez  v.  El  Paso  &  N.  E.  E.  Co.,  215  U.  S.  ,  lias  held  that  tlio 
Employers'  Liability  Act  of  J906  is  valid  as  applied  to  the  territories  of 
the  Unjted  States. 


560  Index. 

(Eeferences  are  to  pages.) 

COEPOEATION  TAX  ACT— Continued. 

When  to  be  paid,  548. 

Penalties  for  not  making  returns,  549. 

Circuit  and  district  courts  jurisdiction  to  require  production  of  books, 
549. 
COST  OF  CAERIEES'  EQUIPMENT. 

Must  be  considered  in  determining  reasonableness  of  a  rate,  96-100. 
COST  OF  SEEVICE. 

How  far  considered  in  fixing  rates,  101-103. 

A  particular  service  may  be  required  at  less  than,  133. 

"Cost  of  service"  and  "value  of  service"  contrasted,  104,  139. 

COUETS  OF  THE  STATES. 

No  jurisdiction  to  enforce  act  to  regulate  commerce,  259-265. 
May  enforce  the  law  fixing  the  liability  of  initial  carrier,  266-268. 
May   enforce   rights   growing   out   of   safety   appliance   acts   and   Em- 
ployers' Liability  Act,  354,  355,  356. 

COUETS  OF  THE  UNITED  STATES. 

May  enforce  act  to  regulate  commerce,  259-265,  491,  495. 

May  not   declare  a  rate  regularly  filed  with  the  Interstate  Commerce 
Commission  unreasonable  prior  to  action  by  the  commission,  261. 

Concurrent   jurisdiction   with   courts    of    the    states   to    enforce    initial 
carrier  liability,  268. 

Like    jurisdiction    to    enforce    Employers'    Liability    and    Safety    Ap- 
pliance Acts,  354-356. 

May  compel  attendance  of  witnesses  before  the  Interstate   Commerce 
Commission,  269. 

May  enforce  orders  of  the  commission,  270. 

Effect  given  by,  to  orders  of  commission  to  desist,  271-277. 

Effect  given  orders  of  reparation,  277-280. 

Effect  given  orders  of  commission  fixing  rates,  rules  and  practices  for 
the  future,  280-304. 

Eules  followed  in  suits  in  United  States  courts  to  set  aside  orders  of 
the  commission,  301. 

Eight  to  enjoin  an  illegal  advance  in  rates,  305-328. 

Principles  upon  which  right  to  enjoin  is  based,  305,  306. 

Injunction  against  illegal  rates  at  common  law,  306-311. 

Such  injunctions  prior  to  Abilene  Case,  311-316. 

Such  injunctions  in  circuit  courts  since  Abilene  Case,  316-321. 

Such  injunctions  in  circuit  courts  of  appeal,  321-325. 

Constitutional   and   statutory   provisions   affecting   the   right   to    grant 
such  injunctions,  325-327. 

The  case  of  Texas  &  Pacific  E.  Co.  v.  Abilene  Cotton  Oil  Co.,  not  con- 
clusive of  the  question,  316-317. 

Venue  of  suits  in,  to  enjoin  illegal  advance,  328-329. 
CEUELTY  TO  ANIMALS. 

Act  to  prevent,  351,  501-504. 

Act  to  prevent,  constitutional,  351,  502. 


Index.  561 

(Eeferences  are  to  pages.) 

CEUELTY  TO  ANIMALS— CojiiinwefZ. 

Animals   not   to   be   confined   longer   than    28   hours   while   in   transit, 

501,  502. 
Time  may  be,  by  written  request,  extended  to  36  hours,  501,  502. 
Sheep  need  not  be  unloaded  at  night,  502. 
Act  not  apply  when  transportation  in  car  or  boat  where  proper  food 

and  exercise  is  given,  503. 
Feeding  at  owner's  risk,  503. 
Carrier  given  a  lien  for  feed,  351,  503. 
Penalties  for  violating  act  to  prevent,  503. 
Penalties  for  each  shipment,  351,  504. 
Suits  for  penalties  a  civil  action,  351,  504. 
"Knowingly  and  wilfully"  used  in  act  to  prevent   defined,  351,  502, 

504. 
Prior  law  on  the  subject,  350. 

D 

DAMAGES,  RECOVEEABLE  FOR  VIOLATING  ACT  TO  REGULATE 
COMMERCE. 

Commission  no  authority  to  award  for  breach  of  contract,  220,  438. 

Nor  to  award  a  set-off  against  a  shipper,  220. 

Courts  may  not  award  for  charging  an  unreasonable  rate  prescribed 
in  a  regularly  filed  tariff  prior  to  action  by  commission,  220. 

Claim  for  should  be  made  in  original  complaint  to  commission,   221, 
222. 

Who  may  recover  for  overcharge,  223,  224,  433-442,  473. 

What  carriers  liable  for  overcharge,  225. 

Protest   not    necessary   before   recovery   of   for   charging   unreasonable 
rate,  226,  227,  228. 

Remedy  for  inadequate  for  charging  unreasonable  rate,  228. 

Limitation  on  claims  for,  229-231,  472,  473. 

Order  of  commission  for  prima  facie  proof  of  right  to,  277-280. 

Eights  to,  assignable,  440. 

F.  O.  B.  shipper  can  not  recover,  224. 

When  a  cause  of  action  accrues  for,  230,  231. 

Full  amount  of  overcharge  may  be  recovered  as,  223,  224,  225. 

Claims  for  may  be  compromised,  438. 

Award  by  commission  after  hearing,  464-472. 

Suit  in  courts  on  award  of,  472. 

Parties  to  suit  for,  473. 

No  recovery  of  for  misquoting  a  rate,  196,  197,  198. 
DEMURRAGE. 

On  interstate  shipments,  338,  339. 

On  intrastate  shipments  governed  by  state  laws,  339. 
PEMURRER. 

Notice  in  nature  of,  247. 

Form  of  notice  of,  256. 


n 


562  Index. 

(Eeferences  are  to  pages.) 
DEPOSITIONS. 

Of  witnesses  may  be  taken  on  hearings  before  commission,  249,  451, 

452. 
Notice  of  taking,  257. 
DIFFEKENTIAL. 

Between  car-loads  and  less-than-car-loads,   128-131,   173-175. 
Between  car-loads  and  train-loads  illegal,  174. 

DISCEIMINATION. 

Illegal  at  common  law,  76,  143-145. 

Basing  point  system  is,  125. 

Group  rates  not,  124,  210,  211. 

Undue  or  unjust  only  illegal,  147,  214,  383,  391. 

Prohibited  by  act  to  regulate  commerce,  147-149. 

Against  individuals,  149,  150,  151. 

Cars  must  be  furnished  without,  187,  383,  391. 

Penalties  for  inducing,  445. 

May  be  prevented  by  writ  of  mandamus,  485,  491. 

Differential   between   car-loads    and   less-than-car-loads   must    be   with- 
out, 131,  174. 

Billing,  classifications,  etc.,  must  be  without,  175,  193,  444. 

Elevator  allowances  produce,  184-187. 

Eebilling  is  illegal,  180-184. 

Milling  in  transit  not  illegal,  179. 
DISTANCE. 

Eates  should  not  be  based  wholly  on,  119,  120. 

E 

ECONOMIC  MAXIMUM. 

Amount  of  freight  tendered  may  exceed,  119. 
ELEVATOE  ALLOWANCES. 

Defined,  184,   185. 

Illegal,  185-187. 

EMPLOYEES  OF  CAEEIEES. 

State  law  affecting  interstate  carriers,  346. 

Full  crew  law,  346. 

Hours  of  service  limited,  527,  528. 

When  rule  as  to  assumed  risk  does  not  apply,  525,  534. 

EMPLOYEES'  LIABILITY  ACT. 

First  act  unconstitutional  in  states,  353.* 
Present  law  believed  valid,  353. 


*  Since  this  book  has  been  in  the  hands  of  the  printer,  the  Supreme  Court, 
in  Guiterez  v.  El  Paso  &  N.  E.  E.  Co.,  215  U.  S.  ,  has  held  that  the 
Employers'  Liability  Act  of  1906  is  valid  as  applied  to  the  territories  of 
the  United  States. 


Index.  563 

(Eeferenees  are  to  pages.) 

EMPLOYEES'  LIABILITY  ACT— Continued. 

State  laws  valid,  353. 

May  be  enforced  by  state  courts,  354-356. 

Applies   only  to   carriers   engaged   in   interstate   commerce   of   to   the 
territories,  533. 

Liability  under  for  death,  533. 

Contributory  negligence  not  bar  but  decrease  damages,  534. 

No  assumed  risk  where  carrier  violates,  534. 

Carrier  shall  not  limit  liability  by  contract,  534. 

Limitation  of  right  of  action  under,  534. 

*  *  Common  carrier ' '  defined,  534. 

Not  affect  act  1906  in  its  application  to  territories,  534,  535. 
ENGLISH  EAILWAY  AND  CANAL  TEAEFIC  ACTS. 

Section  two  act  to  regulate  commerce  based  upon,  146,  147,  383. 

Section  90  English  act  given,  383. 

Section  3  based  on  section  2  of  English  act,  1854,  391. 

Section  2  of  Act  1854  and  section  11  of  Act  1873  given,  391,  392. 

Long  and  short  haul  clause  of  English  law,  404. 

Pooling  not  contrary  to,  411. 

Comparisons  between  and  act  of  Congress,  145,  146,  147. 
EXAMINEE. 

Special  may  be  appointed,  486. 

Penalty  for  divulging  information,  485. 
EXPEDITING  ACT 

Suits  under  act  to  regulate  commerce  controlled  by,  476,  487. 

The  act  copied,  497,  498. 
EXPLOSIVES. 

Act  regulating  the  transportation  of,  531-532. 
EXPEESS   COMPANIES. 

Subject  to  act  to  regulate  commerce,  85,  368. 

May  not  grant  free  transportation,  202,  203,  381,  488. 

Cost  of  equipment  of  little  value  in  fixing  rates  of,  100. 
EVIDENCE. 

Technical  rules  of,  not  apply  to  hearings  before  commission,  244. 

Contracts,  etc.,  filed  with  commission  used  as,  477,  478. 

May  be  taken  by  deposition,  249,  257,  451,  452. 

F 

FALSE  BILLING. 

A  form  of  discrimination,  193. 
Prohibited,  444. 

FALSE  CLASSIFICATION. 
Penalties  for,  444. 

FALSE  WEIGHING. 
Penalties  for,  444. 


564  Index. 

(Eeferences  are  to  pages.) 
FEED. 

Animals  in  interstate  transportation  must  receive,  501-504. 
FLOEIDA. 

Special  freight  classification  in,  178. 

F.  O.  B.  SHIPPER. 

Can  not  recover  for  overcharge  when  pays  no  freight,  224. 

FORMS  OF  PROCEDURE  BEFORE  INTERSTATE  COMMERCE  COM- 
MISSION. 
Complaint,  254,  255. 
Answer,  256. 

Notice  in  nature  of  demurrer,  256. 
SubpcEna   for  witnesses,   257. 
Depositions,  notice  to  take,  257. 

FREE  TRANSPORTATION. 

Illegal,  with  certain  exceptions,  202,  378,  379,  380,  381. 

Railroads  may  give  to  own  officials  and  employees,  202,  488. 

And   to   certain   persons   engaged    in   religious   or   eleemosynary   work, 

378,  487. 
And  to  inmates  of  Sailors'  and  Soldiers'  Homes,  378,  487. 
Express  companies  may  not  give,  even  to  own  officers,  202,  203,  381, 

488. 
Railroads  may  exchange,  379,  381,  488. 
Exception  to  rule  against,  202,  378,  379,  380,  381,  487,  488,  489. 

FULL  CREW  LAW. 

By  states  valid,  346. 

G 

GEORGIA. 

Employers'  Liability  Act  valid,  353. 
Special  freight  classification,  178. 

GROUP  RATES. 

Legal,  if  not  discriminatory,  124,  210,  211. 
English  law  with  reference  to,   210,   211. 

H 

HEPBURN  ACT. 

Effective  when,  229,  230,  473,  494. 
Not  affect  pending  suits,  493. 

I 

ILLINOIS. 

Special  freight  classification  in,  178. 


Index.  565 

(Eeferences  are  to  pages.) 
INITIAL  CAREIER. 

Liable  for  loss  or  damage  caused  by  it  or  a  connecting  carrier,  265- 
269,  486. 

INJUNCTION.  * 

Courts  of  United  States  may  grant  against  an  illegal  advance  in  rates, 

305-328. 
Principles  upon  which  granted,  305,  306. 
At  common  law,  306-311. 
Under  act  to  regulate  commerce,  311-316. 

Decisions  of  circuit  courts  of  appeal  with  reference  to,  321-325. 
Eight  to  grant  not  determined  by  Abilene  Case,  316-321. 
Statutory  provisions  relating  to,  325-327. 
Venue  of  suits  in  action  for,   328-329. 

Limitation  on  right  to  grant  against  order  of  commission,  477. 
Granted  to  prevent  departure  from  published  tariffs,  495. 
Under  anti-trust  act,  515-517. 

INTEECHANGEABLE  MILEAGE  TICKETS. 

Provisions  for  issuance  of,  490. 
INTEECHANGE  OF  TEAFFIC. 

Switch  connections,  382. 

Facilities  for  required  by  act  to  regulate  commerce,  401,  403. 

State  laws  requiring,  334-337. 

INTEESTATE   COMMEECE. 

What  is,  84,  86,  90,  362-368. 

Whether  transportation  is  or  is  not,  controlled  by  contract  of  car- 
riage and  not  origin  and  destination  of   shipment,  86-90,  367. 

Traffic  originating  and  ending  in  a  state  but  passing  through  an- 
other state  is,  90,  367. 

State  carrier  engaged  in  when,  88,  89,  363,  364,  366. 

INTEESTATE  COMMEECE  COMMISSION. 
Act  creating  constitutional,  78,   82. 
Powers  and  procedure  of,  90-92,  244,  480. 
Eules  of  procedure  prescribed  by,  245-254. 
Forms  of  procedure  prescribed  by,  254-258. 
General  powers  of,   215-216. 

Appointment   and   duties,   216,   217,   446,   447,   450. 
Power  to  relieve  from  long  and  short  haul  clause,  217,  403,  411. 
Duties  with  reference  to  schedules  of  rates,  218-220,  420. 
With  reference  reparation  for  violation  of  act  to  regulate  commerce, 

220-222,  433-442,  464-472. 
May  make  investigations  without  complaint,  232-237. 
May  invoke  aid  of  courts  of  United  States  to  enforce  act  to  regulate 

commerce,  237,  475. 
May  grant  rehearings,  237-239,  478,  479. 
lias  power  to  make  regulations,  which   I'arriors  must  obey,  239-242. 


566  Index. 

(Keferences  are  to  pages.) 

INTERSTATE  COMMERCE   COMMISSION— Cojitinued. 

May  require  the  establishment  of  through  routes  and  joint  rates,  92, 

242-244,  463. 
Who  may  make  complaints  before,  452-456. 
Reports  to  Congress  by,  456-458,  487. 
May  prescribe  rates,  rules  and  practices  for  the  future,  91,  92,  239, 

458-461. 
Force  of  such  orders,  280-304. 
Tests  to  determine  validity  of  orders  of,  303-304, 
May  fix  division  of  joint  rate,  242,  462. 
When  orders  take  effect  and  how  long  continue,  462. 
Service  of  orders  of,  474. 
May  suspend  or  modify  its  own  orders,  474. 
Punishment  for  disobedience  to  orders  of,  474. 
"V^Tio  prosecutes  for  violations  of  orders  of,  474,  475, 
Courts  of  United  States  may  enforce  orders  of,  259-264,  270,  475. 
Venue  of  suits  to  set  aside  orders  of,  475,  476. 
Effect  to  be  given  by  courts  to  orders  of,  271-277. 
Eft'ect  to  be  given  by  courts  to  orders  of  reparation,  277-280. 
Suits  against  to  be  expedited,  476,  477. 
Salaries  and  expenses  of,  480,  493. 
Principal  office  of,  481. 
Carriers  must  report  to,  481-484. 
May  employ  agents  and  examiners,  486. 

No  jurisdiction  to  award  damages  or  set-off  against  shipper,  220,  238. 
When  can   compel  attendance  of  witnesses,  235-237. 
Enumeration  of  powers  not  exclusive,  463. 

INTRASTATE  COMMERCE. 

Not  included  in  act  to  regulate  commerce,  368. 

IOWA. 

Special  freight  classification  in,  178, 

IRON. 

Entitled  to  relatively  low  rates,  107, 


JURISDICTION  OF  COURTS  OF  THE  STATES. 

None  to  enforce  act  to  regulate  commerce,  259-265. 
Have  to  enforce  initial  carrier  liability,  266-268. 

Have  to   enforce  rights  growing  out   of   Safety  Appliance   and   Em- 
ployers' Liability  Acts,  354,  355,  356. 

JURISDICTION  OF  THE  COURTS  OF  THE  UNITED  STATES. 
Have  to  enforce  act  to  regulate  commerce,  259-265,  491. 
None  prior  to  action  by  the  commission  to  declare  a  rate  illegal  which 

has  been  regularly  filed  with  the   commission,   261. 
Concurrent  with  courts  of  the  states  to  enforce  initial  carrier  liability, 

268. 


Index.  567 

(■References  are  to  pages.) 

JURISDICTION  OF  THE  COUETS  OF  THE  UNITED  STATES— Con- 
tinued. 
To  compel  attendance  of  \^itnesses  before  commission,  269. 
Have  to  enforce  orders  of  commission,  270. 
To  enjoin  an  illegal  advance  in  rates,  305-328. 
To  prevent  departures  by  carriers  from  published  rates,  495. 


LESS  THAN  CAE  LOADS. 

Differential  between  and  car-load  legal,  128-131,  173-175. 
Principle  of  such  differential  generally  adopted,  128,  173,  174. 
Percentage  of  commodities  upon  which  a  differential  exists,  174. 
Commission  not  inclined  to  compel  such  differential,  129,  174. 
Such  differential  nuist  be  without  discrimination,  131,  174. 

LIMITATION  OF  ACTION. 

On  claims  for  reparation  or  damages  under  act  to  regulate  commerce, 

229-231,  472,  473. 
In   suits  for  forfeitures  for  rebating,  433. 
In  suits  for  damages  under  anti-trust  law,  520. 
Under  Employers'  Liability  Act,  534. 

LONG  AND  SHORT  HAUL  CLAUSE. 
Discussed,  160-173. 
Enforced  in  Social  Circle  Case,  163. 
Carriers   may   disregard   when   competitive   conditions   justify   without 

previous  permission  of  the  commission,  166,  167,  169. 
Authorities  on,  summed  up,  170,  171. 

Burden  of  proof  on  carrier  to  show  reasons  for  not  following,  172. 
Clause  copied  and  annotated,  403-411. 
Similar  clause  in  English  law,  404. 
State  laws  on  subject,  343,  344. 

LOSS  AND  DAMAGE. 

Should  be  considered  in  determining  whether  or  not  a  particular  rate 
is  reasonable,  106,  107. 

M 

MANDAMUS. 

Courts  of  United  States  may  issue  writ  of,  to  prevent  discrimination, 

491, 
May  issue  to  prevent  departure  from  published  rate,  495. 
Courts  may  enforce  act  to  regulate  commerce  by  writ  of,  92,  93,  475, 

485,  491,  492,  495. 

MEAT  INSPECTION  ACT. 

Section  of  relating  to  transportation  copied,  504. 

MILEAGE,  INTERCHANGEABLE. 
Provision  for,  490. 


568  Index.  I 

(References  are  to  pages.) 
MILLING  IN   TRANSIT. 

Practice  described,  179.  _ 

Practice  legal,  if  not  discriminatory,  179-180.  ■ 

May  be  ordered  established  by  commission  to  prevent  discrimination, 
180. 

MONOPOLIES. 

Existence  of,  considered   in   determining  whether   or   not   a   rate  rea- 
sonable, 107-115,  351,  511. 
Act  prohibiting  applies  to  interstate  carriers,  351,  510. 
What  combination  included  in  act  to  prevent,  351,  352,  505. 
Act  to  prevent  copied  and  annotated,  505-520. 
Penalties  for  violating  act  prohibiting,  505-514. 
Lav?  against  applies  to  territories,  515. 
May  be  enjoined,  515. 
Parties  to  suit  against,  517. 
Subpoena  in  suits  against,  517. 
Property   being   transported   in   violation    of    law    against    seized    and 

forfeited  when,  518. 
Damages  and  attorneys'  fees  for  violating,  518,  519. 
Allegation  in  suits  for  such  damages,  518,  519. 
''Persons"  defined  in  act  against,  520. 
Anti-trust   law   prohibits,   505-520. 
Sherman's  anti-trust  law  defines  and  prohibits,  505-520. 

N 

NEGLIGENCE,  CONTRIBUTORY. 

Not  bar  a  recovery  for  damages  under  Employers'  Liability  Act,  534. 
Damages  to  be  diminished  when  employee  guilty  of,  534. 

NEGROES. 

Laws  separating  from  whites  in  passenger  coaches,  341,  342. 

State  laws  separating  from  whites  in  passenger  coaches  valid  as  to 

intrastate  travel,  342. 
State  laws  requiring  negroes  to  be  carried  with  whites  invalid  as  to 

interstate  commerce,  341. 

NORTH  CAROLINA. 

Special  freight  classification  in,  178. 

0 

OFFICERS. 

When  acts  of,  bind  corporation,  431,  432. 

OFFICIAL    CLASSIFICATION. 

Territory  covered  by  described,  178. 


Index.  569 

(Eeferences  are  to  pages.) 
OPPOSITE  DIEECTIONS. 

Bates  over  same  line  in,  may  differ,  198-202. 

Different   rates  in,   over   same   line  require  explanation  from   carrier, 
199. 
OVERCHAEGE. 

Illegal  at  common  law,  75. 

Prohibited  by  act  to  regulate  commerce,  85,  370-378. 

Commission  can  not  award  set-off  against  claim  for,  220. 

Courts  can   not   prior   to   determination  by  commission   decree   that   a 
regularly  filed  rate  constitutes  an,  220. 

Claims  for,  should  be  made  in  original  complaint  to  commission,  221. 
222. 

"Who  may  recover  for,  223,  224,  433-442,  473. 

What  carriers  liable  for,  225. 

Protest  not  necessary  to  a  recovery  of,  226,  227,  228. 

Eemedy  for  inadequate,  228. 

Limitation  on  claims  for,  229,   231,   472,  473. 

Order  of  commission  fixing  amount  of  prima  facie  correct,  277-280. 

Claim  for  assignable,  440. 

P.  O.  B.  shipper  can  notr  recover  for,  224. 

When  a  cause  of  action  accrues  for,  230,  231. 

Full  amount  of,  fixed  as  measure  of  damages,  223,  224,  225. 

Claim  for  may  be  compromised,  438. 

Award  for  by  commission  after  hearing,  444-472. 

Suit  in  courts  on  award  for,  472. 

Parties  to  suits  to  recover,  473. 

P 

PAETIES. 

Eule  adopted  by  commission  with  reference  to,  246. 
All  to  an  award  for  damages  may  sue  as  joint  plaintiffs,  473. 
Who  may  be  defendants  in  suits  to  enforce  act  to  regulate  commerce, 
494. 

PASSENGEES. 

State  laws  for  security  of,  345,  346. 
Separation  of,  341,  342. 

PEESONS. 

Discrimination  against,  illegal,  149,   150,   151. 
Includes  corporation  in  anti-trust  act,  520. 

POOLING  FEEIGHTS. 
Illegal,  411-413. 
Prevents  competition,  108. 
Objects  of  section  against,  108. 
Not  illegal  under  English  law,  411. 
Not  illegal  under  Canadian  law,  411. 


570  Index. 

(Keferences  are  to  pages.) 
PEEFEEENCE. 

Undue  and  unreasonable  prohibited,  147-152,  214,  383-401. 

Not   undue    or    unreasonable   when    circumstances    are    different,    155, 

156. 
Prohibited  by  English  law,  153. 

Length  of  time  that  has  existed  will  not  legalize,  156. 
Interchange  of  traffic  must  be  without,  157-160. 
Owner  of  private  wharf  may  give,  160. 
Military  traffic  may  have,  427. 

PEESUMPTION. 

Eates   advanced   as  result    of   combination   prima   facie   unreasonable, 

107-117. 
This  presumption  not  conclusive,  114. 
Eates  long  in  existence  presumed  to  be  reasonably  high,  122-125. 

PEINCIPLES  OF  EATE  MAKING. 

Eates  must  be  just  and  reasonable,  75,  94,  95,  370-378. 
What  is  a  just  and  reasonable  rate  not  easily  determinable,  95,  96. 
Must  consider  cost  of  carriers'  equipment,  96,  97,  98,  99,  100. 
Cost  of  carriers'  equipment  of  little  value  in  fixing  express  rates,  100. 
Cost  of  service,  101,  102,  103. 
Value  of  service,  103,  104,  105,  106. 
Value  of  the  commodity,  its  utility,  106. 
Danger  to  loss  and  damage,  106. 
Competition  or  its  absence,  107-117. 
Amount  of  tonnage,  117-119. 
Distance  and  rate  per  ton  mile,  119. 
Business  conditions,  120-122. 
Long  existence  of  a  particular  rate,  122-124. 
Grouping  territory,  124,  208-211. 
Basing  point   system,  125-126,  208-211. 
Comparisons  between  rates  on  different  lines,  127. 
Car-loads  or  less-than-car-loads,  128-131,  173-175. 
Through  rates  and  local  rates,  131. 
Public   interest,   132-133. 

Discussion  of  general  principles  relating  to  rate  making,  134-141. 
Test  of  a  rate  best  method  of  determining  reasonableness  of,  303,  304. 
Eate  yielding  no  profit,  but  causing  a  loss,  may  be  required  of  a  com- 
mon carrier,  102,  103. 

PEOCEDUEE    BEFOEE    THE    INTEESTATE    COMMEECE    COMMIS- 
SION. 

Not  technical,  244,  245,  480. 

Sessions  public,  245. 

Parties  to  answer  before,  246. 

Complaints  before,  244,  246,  247,  254,  255,  452-456. 

Commission  may  act  without  complaint  when,  232-235,  236,  237. 

Answers  to  complaints  before,  247,  257. 


I 


Index.  571 

(Eeferences  are  to  pages.) 

PEOCEDUEE    BEFOEE    THE    INTEESTATE    COMMEECE    COMMIS- 
SION— Continued. 

Demurrers,  247,  256. 

Service  of  papers,  248. 

Amendments,  248. 

Continuances,  248. 

Stipulations,  248. 

Trials  before,  248. 

Depositions  may  be  taken  on  hearing  before,  249,  257. 

Witnesses  and  subpoenas,  250,  257. 

Documentary  evidence,  250. 

Briefs,  251. 

Eehearings,  252,  478,  479. 

Printing  of  pleadings,  252. 

Copies  of  testimony  and  papers,  how  furnished,  253. 

Applications  under  long  and  short  haul  clause,  253. 

Information  to  parties,  253. 

Statute  relating  to,  480. 
PEOSPEEITY. 

Of  shipper,  carrier  can  not  absorb,  121. 

In  times  of  carrier  may  restore  rates  that  had  declined  under  com- 
mercial conditions,  122. 
PEOTEST. 

Not  necessary  before  recovering  for  overcharge,  226,  227,  228. 
PUBLIC  INTEEEST. 

Must  be  considered  in   fixing  charges  of  public  service  corporations, 
132,  133. 

a 

QUAEANTINE. 

State  laws  requiring,  345. 

E 

EACES. 

Laws  of  states  separating  white  and  negro,  341,  342. 
EAILEOAD. 

A  person  within  the  meaning  of  the  Fourteenth  Amendment,  287. 

Defined,  287,   368,  369,   535. 
EATE  IN  AND  OF  ITSELF 

Can  rarely  determine  whether  or  not  reasonable,  140,  301,  302, 
EATE  MAKING,  PEINCIPLES  OF. 

Eates  must  be  just  and  reasonable,  75,  94,  95,  370-378. 

What  is  a  just  and  reasonable  rate  not  easily  determinable,  95,  96. 

Must  consider  cost  of  carriers'  equipment,  96,  97,  98,  99,  100. 

Cost  of  carriers'  equipment  of  little  value  in  fixing  express  rates,  100. 

Cost  of  service,  101,  102,  103. 


572  Index. 

(Keferences  are  to  pages.) 

EATE  MAKING,  PKINCIPLES  OF— Continued. 
Value  of  service,  103,  104,  105,  106. 
Value  of  commodity,  its  utility,  106. 
Danger  to  loss  and  damage,  106. 
Competition  or  its  absence,  107-117. 
Amount  of  tonnage,  117-119. 
Distance  and  rate  per  ton  mile,  119. 
Business  conditions,   120-122. 
Long  existence  of  a  particular  rate,   122-124. 
Grouping  territory,   124,   208-211. 
Basing  point  system,  125-126,  208-211. 
Comparisons  between  rates  on  different  lines,  127. 
Car-loads  or   less-than-car-loads,   128-131,   173-175. 
Through  rates  and  local  rates,  131. 
Public  interest,  132-133. 

Discussion  of  general  principles  relating  to  rate  making,  134-141. 
Test   of   a   rate   best   method   of    determining   reasonableness    of,   303, 

304. 
Eate  yielding  no  profit,  but  causing  a  loss,  may  be  required  of  a  com- 
mon carrier,  102,  103. 

EATES  FOR  TEANSPOETATION  MUST  BE  EEASONABLE. 

Common  law  required  that,  75,  76,  94,  95. 

Eequired  because  common  carriers  engaged  in  a  business  affected  with 
a  public  interest,  95. 

Eequired  by  Act  of  Congress,  94,  95,  370-378, 

EATES,  JOINT,  AND  THEOUGH  EOUTES. 

Commission    may    require    establishment    of,    92,    242,    244,    369,    370, 

465. 
Commission  may  fix  division  of  joint  rates,  242,  462. 
None  required  when  a  reasonable  already  exists,  370. 
Indemnity  may  be  required  of  irresponsible  carriers  before   ordering, 

370. 

EEBATES. 

Defined,  95. 

Corporation  may  be  guilty  of  crime  of  giving,  213,  427. 

Form  of  granting  immaterial,  213. 

Each  payment  of  a  separate  offense,  214. 

Giving  prohibited,  428. 

Punishment  for  giving,  428. 

Forfeiture  for  giving,  in  addition  to  penalties,  432. 

Limitation  on  guits  for  forfeitures,  433. 

Equitable  proceedings  against  giving,  495. 

EEBILLING. 

Defined,  180,  181. 

Practice  of,  illegal,  182-186. 

An   illegal   device,   184. 

Sometimes  designated   as   "  Eeshipping, "   184. 


Index.  573 

(Eeferences  are  to  pages.) 
EECEIVEES. 

Duties  of,  under  arbitration  act,  540. 
EEHEAEINGS. 

Commission  may  grant,  237,  239,  478-479. 
EEPAEATION. 

Commission  no  authority  to  award,  for  breach  of  contract,  220,  438, 

Nor  to  award  a  set-off  against  a  shipper,  220. 

Courts  may  not  award  for  charging  an  unreasonable  rate  prescribed 

in  a  regularly  filed  tariff  prior  to   action  by  commission,   220. 
Claim  for  should  be  made  in   original  complaint  to  commission,   221, 

222. 
Who  may  recover  for  overcharge,  223,  224,  432-442,  473. 
What  carriers  liable  for  overcharge,  225. 
Protest  not  necessary  before  recovery  for  charging  unreasonable  rate, 

226,  227,  228. 
Eemedy  for  inadequate  for  charging  unreasonable  rate,  228. 
Limitation  on  claims  for,  229-231,  472,  473. 

Order  of  commission  for  prima  facie  proof  of  right  to,  277-280. 
Eights  to  assignable,  440. 
F.  O.  B.  shipper  can  not  recover,  224. 
When  a  cause  of  action  accrues  for,  230,  231. 
Full  amount  of  overcharge  may  be  recovered  as,  223,  224,  225, 
Claims  for  may  be  compromised,  438. 
Award  by  commission  after  hearing,  464-472. 
Suit  in  courts  on  awa,rd  of,  472. 
Parties  to  suit  for,  473. 
No  recovery  of  for  misquoting  a  rate,  196,  197,  198. 

EESHIPPING. 

Defined,  180,  181. 

Practice  of  illegal,  182-186. 

An  illegal  device,  184. 

Sometimes  designated  as  "rebilling, "  184. 

EOUTING  FEEIGHT. 
Eule  as  to,  192,  193. 

s 

SAFETY  APPLIANCE  ACTS. 
Discussed,  352. 

Eequiring  automatic  couplers,  523-526. 
Eequiring  continuous  brakes,  523-526. 
Standard  height  of  draw  bars  regulated  by,  524-525. 
Not  applicable  to  certain  cars  and  locomotives,  525. 
Penalty   for  violating,   524. 
No  assumed  risk  under,  525. 
Hours  of  service  of  employees  limited,  527-529. 


574  Index. 

(Eeferences  are  to  pages.) 

SAFETY  APPLIANCE  ACTS— Continued. 
Ash  pan  act,  529-530. 

Act  relating  to  transportation  of  explosives,  531. 

Courts  of  states  and  United  States  have  concurrent  jurisdiction  to  en- 
force, 354,  355,  356. 

SALT. 

Entitled  to  a  relatively  low  rate,  107. 

SCHEDULES  OF  BATES. 

Must  be  printed,  posted  and  maintained,  194-198,  413-418,  420-427. 
Eule  applies  to  that  part  of  an  export  or  import  movement  -which  is 

over  rail  carriers,  194. 
Mistake  in  gi-ving  shipper  not  relieve  carrier  from  charging  full  rate, 

196,  197,  198. 
This  rule  a  harsh  one,  198. 
Regulation  as  to  printing  and  posting  for  freight  moving  from  one  to 

another  point  in  United   States  through  foreign  countries,  418. 
Shall  not  be  changed  without  notice,  418-419. 
Names  of  carriers  parties  to  must  be  specified,  419. 
Commission  may  prescribe  forms  of,  420. 
No    carrier    shall    participate    in    interstate    commerce    without    filing, 

420-427. 
Eebate  from  defined,  prohibited  and  punished,  95,  213,  214,  427,  428, 

432,  433,  495,  516. 

SERVICE. 

Hours  of  employees  of  carriers  limited,  527-529. 

SET-OFF, 

Commission  no  power  to  allow,  220. 

SHIPPERS. 

Commission  no  power  to  allow  damages  against,  220,  438. 

Can  not  recover  damages  suffered  because  misinformed  by  carrier  as 

to  a  published  rate,  196-198. 
Instrumentalities  furnished  by  must  be  at  a  reasonable  rate,  463. 

SHEEP. 

Need  not  be  unloaded  at  night,  502. 

SHERMAN  ANTI-TRUST  LAW. 

Violation  of,  considered  in  determining  whether  or  not  a  rate  is  rea- 
sonable, 107-115,  351. 
Applies  to  carriers,  351,  510. 

Interstate  Commerce  Commission  no  power  to  enforce,  113. 
What  combinations  included  in  prohibition  of,  351,  352,  505. 
Annotated,   505-520. 
Penalties  for  violating,  505,  514. 
Monopolies  prohibited,  514. 
Territories,  law  applies  to,  515. 
Enjoin  violations  of,  courts  may,  515. 
Parties  to  suits  for  violating,  517. 


Index.  575 

(Eeferences  are  to  pages.) 

SHERMAN  ANTI-TRUST  IjKS^— Continued. 

Subpoenas  may  be  served  on  parties  in  any  district,  517. 
Property  seized  and  forfeited,  when,  518, 
Damages  for  violating,  measure  of,  518. 
Allegations,  what  required  in  suit  for  damages,  518,  519. 
Attorneys'  fees  as  part  of  recovery  in  suits  for  damages,  518,  519. 
"Person"  includes  corporation,  520. 

Limitation,  laws  of  state  where  suit  filed  applies  to   suits  for  dam- 
ages, 520. 
Known  as  "Sherman  Anti-Trust  Law,"  351,   505. 
Act  1894,  521,  522. 

SOUTHERN  CLASSIFICATION  TERRITORY. 

Limits  defined,  178. 
SPEED  OF  TRAINS. 

Limited  by  state  laws,  332. 
STATE  COURTS. 

No  jurisdiction  to  enforce  act  to  regulate  commerce,  259-265. 

May  enforce  the  law  fixing  the  liability  of  initial  carrier,  266-268.  ' 

May   enforce   rights   growing   out    of   safety   appliance   acts   and    Em- 
ployers' Liability  Act,  354,  355,  356. 

STATE  LAWS  AFFECTING  INTERSTATE   COMMERCE. 
When  valid,  330,  331. 
Regulating  Sunday  trains,  331. 
Regulating  speed  of  trains,  332, 
Requiring  trains  to   stop,   332-334. 
Requiring  switch  connections,  334-338. 
Demurrage  regulations,  338-339. 
Requiring  cars  to  be  furnished,  339,  340. 
Separate  coaches  for  white  and  negro  races,  341-342. 
Long  and  short  haul  law  under,  343-344. 
Forbidding  combinations  of  carriers,  344. 
Quarantine  laws,  345. 

Laws  to  promote  security  and  comfort  of  passengers,  345. 
Regulation  of  carriers  and  employees,  346. 
Fixing  employers'  liability,  353. 

Limiting  or  enlarging  common  law  liability  of  carriers,  347. 
Fixing  penalties  for  failure  to  pay  claims,  348,  349. 

STOPPAGE  OF  INTERSTATE  TRAINS. 

When  may  be  required  by  state  laws,  332-334. 
SUNDAY. 

State  laws  requiring  freight  trains  not  to  run  on  valid,  331. 
SUPREME  COURT. 

Appeals  may  be  direct  to,  when,  475,  477. 

Appeals  to  given  priority  of  hearing,  475-477. 


576  Index, 

(Eeferences  are  to  pages.) 

SUPREME  COVRT— Continued. 

Appeals  to  -when,  not  suspend  order  appealed  from,  475. 
Appeals  to  from  interlocutory  order,  when,  477. 
Appeals  to  taken  in  thirty  days  when,  477. 

SWITCH  CONNECTIONS. 

Required  when  under  act  to  regulate  commerce,  382,  383. 
Under  state  laws,  334-337. 

T 

TAP  LINE. 

May  legally  obtain  division  of  rate,  387. 

TARIFFS  OF  RATES. 

Must  be  printed,  posted  and  maintained,  194-198,  413-418,  420-427. 
Rule  applies  to  that  part  of  an  export  or  import  movement  which  is 

over  rail  carriers,  194. 
Mistake  in  giving  shipper  not  relieve  carrier  from  charging  full  rate, 

196,  197,  198. 
This  rule  a  harsh  one,  198. 
Regulations  as  to  printing  and  posting  for  freight  moving  from  one 

to  another  point  in  the  United  States  through  foreign  countries, 

418. 
Shall  not  be  changed  without  notice,  418-419. 
Names  of  carriers  parties  to  must  be  sjjecified,  419. 
Commission  may  prescribe  forms  of,  420. 
No    carrier    shall    participate    in    interstate    commerce    without    filing, 

420-427. 
Rebate  from  defined,  prohibited  and  punished,  95,  213,  214,  427,  428, 

432,  433,  495,  516. 

TAX,  CORPORATION. 

Discussion  of,  356-358. 
Constitutional,  356-358. 
What  corporations  included,   542. 

Certain  organizations  and  fraternal  orders  excepted,  542. 
One  percentum  on  net  income  over  $5,000.00,  542. 
How  net  income  determined,  543,  544,  545,  546,  547. 
When  to  be  paid,  548. 
Penalties  for  not  making  returns,  549. 

Circuit  and  district  coxirts  jurisdiction  to  require  production  of  books, 
549. 

TEXAS. 

Employers'  Liability  Act  valid,  353. 
Special  freight   classification  in,  178. 

THROUGH  RATES. 

Should  ordinarily  be  less  than  sum  of  locals,  131,  132. 


Index.  577 

(References  are  to  pages.) 
THROUGH  ROUTES  AND  JOINT  RATES. 

Commission  may  require  establishment  of,  92,  242,  244,  369,  370,  463. 
Commission  may  fix  division  of  joint  rates,  242,  462. 
Not  required  when  a  reasonable  already  exists,  370. 
Indemnity   may   be   required   of   irresponsible   carrier   before   ordering, 
370. 

TON   MILE   RATE. 

Ordinarily  the  greater  the  distance  the  less  the  rate  per  ton  mile,  119- 
120. 

The  rule  not  without  exceptions,  120. 
TRANSPORTATION. 

What  included  in  act  to  regulate  commerce,  86-90,  287,  368,  535. 

Charges  for  must  be  reasonable,  75,  94,  95,  96,  370-378. 

Free  prohibited,  when,  202,  206,  378-381,  487,  488,  489. 

TRUSTS  AND   MONOPOLIES. 

Act  to  prevent,  505-520. 

Act  to  prevent  applies  to  carriers,  351,  510. 

A^iolation   of  act   against   considered   in   determining  reasonableness  ot 

rates,  107-115,  351. 
TWENTY-EIGHT  HOUR  LAW. 
Act  constitutional,  351,  502. 
Animals   not   to   be  confined   while   being   transported   longer   than   28 

hours,  351,  501,  502. 
May,  by  written  request  of  owner,  extend  time  to  36  hours,  501,  502. 
Sheep  need  not  be  unloaded  at  night,  502. 
Feeding  at  owner's  expense,  503. 
Carrier  given  a  lien  for  feed,  351,  503. 
Penalties  for  violating,  503. 
Penalties,  suit  for  a  civil  action,  351,  504. 
Penalty  for  each  shipment,  351,  504. 

"Knowingly  and  wilfully"  used  in  act  defined,  351,  502,  504 
Not   apply  where   animals  have   proper   food   and   opportunity  to   rest, 

503. 
Law  prior  to   1906.  350. 

V 

VENUE. 

In  suits  under  act  to  regulate  commerce,  475,  476,  495. 
Of  suits  to  enjoin  an  illegal  advance,  328,  329. 
In  prosecutions  for  rebating,  429,  430. 

VALUE  OF  SERVICE. 

Considered  in  rate  making,  103,  104,  105,  106. 
VALUE  OF  COMMODITY. 

Considered  in  rate  making,  106. 


578  Index. 

(References  are  to  pages.) 

w 

WAR. 

Military  traffic  given  preference  in  time  of,  427. 
WATER  CARRIERS. 

When  and  where  not  within  act  to  regulate  commerce,  84,  85,  86,  87, 
362-368. 
WESTERN  CLASSIFICATION. 

Territory  included  in  defined,  178. 
WHARF   OWNERS. 

May  select  to  whom  use  of  is  granted,  160. 
WITNESS. 

Power  of  courts  to  compel  attendance  of  before  commission,  269. 

When  may  not  be  compelled  to  attend,  235,  236,  237. 

Compulsory  attendance  of,  499,  500. 

Immunity  of,  496. 
WORDS  AND  PHRASES. 

Common  carrier,  368,  369,  530,  534. 

Common   control,  management   or  arrangement   for   a   continuous   ship- 
ment,  88. 

Conspiracy,   507. 

Discrimination,  383,  390. 

Employees,  528. 

Goods  of  Ihe  same  description,  149. 

Judicial  inquiry,  81. 

Knowingly  and  wilfully,  351,  502,  504. 

Legislative  power,  81. 

Milling  in  transit,  179. 

Official  classification  territory,  178. 

Person,  520. 

Prima  facie,  279,  471. 

Railroad,  287,  368,  535. 

Rebate,  95. 

Rebilling,  180,  181. 

Reshipping,  180,  181. 

Substantially    similar    circumstances    and    conditions,    147,    384,    390, 
399,  404. 

Tap  line,  387. 

Through  routes  and  joint  rates,  370 

Transportation,  287,  368,  535. 

Under    substantially    similar   circumstances    and    conditions,    147,    384, 
390,  399,  404. 

Undue  preference,  152,  155,  391,  394,  399. 

Unjust  discrimination,  383,  396. 

Unreasonable,  152,  393. 

Western  classification,   178. 


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